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LIBRARY 


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filaRnbon  1|B«ss  Strits 


HISTORY 


OF  THE 


LAW  OF  EEAL  PROPERTY. 


DIGBY. 


Hontjon 


MACMILLAN    AND    CO. 


PUBLISHERS   TO    THE    UNIVERSITY    OP 


©«forU 


ClariJiibon  press  ^txm 
AN    INTRODTJCTION 

TO 

THE   HISTORY 

OP  THE 

LAW   OF   REAL   PROPERTY 

WITH   ORIGINAL  AUTHORITIES 
BY 

KENELM    EDWARD     DIGBY,    M.A., 

'f! 

Of  Lincoln's  Inn,  Barrister  -  at  -  Law, 
Late  Vinerian  Reader  in  English  Law,  and  formerly  Fellow  of  Corpus  Chrisli  College 

in  the  University  of  Oxford 


■'  i  »   t     I  • 


» •    »       >  > 


'  ■    '  -        »      »    J  J  1     »      »    J    '  , 


AT     THE     CLARENDON     PRESS 
M  DCCC  LXXV 

[A'.l  rights  reserved'] 


CI.      <  c  c 


3N 
<0 

z 

1^  PEEFACE. 

My  object  in  undertaking  this  woi'k  was  to  attempt  in  some 
degree  to  supply  a  want  which  at  present  greatly  impedes  the 
study  of  English  law  at  the  Universities.  There  is  no  really 
elementary  work  on  the  English  law  of  real  property  adapted 
for  students  who  have  not  and  may  never  have  any  practical 
experience  in  the  working  of  the  law.  Almost  all  elementary 
books  have  been  written  from  the  professional  rather  than  the 
educational  point  of  view ;  excellent  as  many  of  them  are  as 
introductions  to  a  practical  knowledge  of  law,  they  are  scarcely 
available  for  purposes  of  legal  education  at  an  University. 
Blackstone's  treatise  stands  almost  alone  in  adequately  satisfy- 
^  ing  both  demands.  It  has  been  the  fashion  of  late  to  dwell  on 
C55       the  defects  rather  than  on  the  merits  of  that  great  work,  and 


there  are   obvious  reasons  why  it   is    hardly  adapted   to   the 

Q)       requirements    of  the    present   time.      Nevertheless    Blackstone 

"^       still  remains  unrivalled  as  an  expositor  of  the  law  of  his  day. 

'•^       Throughout  the  following  pages  liis  work  is  referred  to  as  at 

once  the  most  available,  and    the  most  trustworthy  authority 

on  the  law  of  the  eighteenth  century. 

In  considering  the  mode  in  which  the  elementary  principles 
of  the  important  branch  of  English  law,  which  is  the  subject 
of  this  treatise,  can  best  be  dealt  with,  there  can  be  little 
question  that  it  is  necessary  to  begin  by  sketching  the  history 
and  development  of  rights  over  land.  Hardly  one  of  the  main 
classifications  of  these  rights  which  is  recognised  at  the  present 
day — the  distinction,  for  instance,  between  the  legal  and  the 
equitable  interest,  the  notion  of  an  estate  in  lands  with  its 
consequences,  as.  distinct  from  property  in  things  personal,  the 
distinction  between  freehold,  leasehold,  and  copyhold  tenure — 


vi  Preface. 

can  be  explained  without  tracing  if  possible  the  origin,  at  all 
events  the  development,  of  these  conceptions.  It  seems  there- 
fore necessary  in  order  to  explain  this  branch  of  the  law  to 
start  from  the  earliest  elements  of  English  law,  and  to  trace 
the  development  by  the  action  of  the  tribunals  and  of  legislation 
of  the  germs  which  are  found  in  our  earliest  authorities,  till  we 
are  at  last  enabled  to  give  something  like  a  systematic  classifica- 
tion of  the  congeries  of  ancient  custom  and  mediaeval  and 
modem  innovation  called  the  law  of  real  property.  It  seems 
best  therefore,  in  the  first  instance,  to  trace  the  growth  of  the 
law  chronologically  till  the  period  is  reached  at  which  the 
structure  has  attained  its  permanent  features,  when  an  attempt 
may  be  made  to  arrange  its  various  branches  systematically ; 
it  being  always  borne  in  mind  that  the  nature  and  attributes 
of  the  various  classes  of  rights  are  to  be  accounted  for  by 
reference  rather  to  their  history  than  to  any  principles  of 
jurisprudence.  This  stage  in  the  history  of  English  law  ap- 
pears to  me  to  have  been  reached  before  the  reign  of  Henry 
VIII.  I  have  attempted  in  the  Appendix  to  Part  I,  Tables  I, 
II,  and  III,  to  arrange  systematically  the  main  branches  of 
the  law  of  land  as  it  stood  at  the  commencement  of  this  reign. 
It  will  be  seen  that  much  of  this  classification  is  taken  from 
Blackstone,  who  followed  one  of  the  greatest  of  English  lawyers. 
Sir  Matthew  Hale. 

In  the  arrangement  summarised  in  Table  I,  as  will  be  seen,  I 
am  largely  indebted  to  Mr.  John  Austin's  Lectures  on  Juris- 
prudence. The  remarkable  analysis  of  juristic  conceptions  which 
he  instituted,  but  unfortunately  left  incomplete,  is,  as  it  seems 
to  me,  a  KTrma  is  del ;  it  is,  in  great  part,  work  done  which  must 
enter  largely  into  the  basis  of  any  attempt  to  recast  English 
law  on  true  principles  of  systematic  arrangement. 

Part  II  of  this  work  treats  mainly  of  the  growth  of  the  two 
branches  of  the  law  of  real  property  which  are  of  the  greatest 
importance  in  modern  law,  the  history  and  development  of  Uses 
and  Trusts,  and  of  Wills  of  land.  The  former  is  perhaps  the 
most  curious  and  important  chapter  in  the  history  of  the  law 


Preface.  vii 

of  land.  The  extreme  technicality  of  our  modern  law,  the 
mysteries  of  conveyancing,  and  the  anomalous  opposition  of 
Equity  and  Law,  are  mainly  due  to  the  unhappy  piece  of  legis- 
lative reform  called  the  Statute  of  Uses.  It  is  this  Statute, 
and  the  marvellous  interpretations  to  which  its  provisions  have 
been  subjected,  which  renders  any  real  simplification  of  the 
law  of  real  property  impossible,  without  a  more  thorough  re- 
building of  the  whole  structure  from  its  foundations,  and  entire 
substitution  of  a  systematic  or  scientific  for  a  historical  classifica- 
tion, than  is  at  all  likely  to  be  undertaken  at  present.  Here, 
therefore,  it  is  necessary  to  pursue  the  same  method  as  in  Part  I, 
and  to  attempt  first  to  trace  the  development  of  the  law,  and  then 
to  summarise  and  arrange  it  under  the  principal  classes  which  are 
due  to  the  historical  causes  whose  action  has  been  discussed. 
This  I  have  attempted  to  do  in  my  last  chapter  on  '  Titles.' 

My  object  throughout  has  been  to  attempt  to  explain  the 
leading  principles  of  the  law  as  it  exists  at  present  by  reference 
to  its  history.  For  antiquarian  research  I  am  painfully  conscious 
that  I  have  neither  sufficient  knowledge  nor  leisure.  I  have 
endeavoured  to  state  with  accuracy  so  much  of  the  antiquities 
of  our  law  as  either  is  necessary  to  explain  its  later  develop- 
ments, or  as  seemed  to  possess  an  intrinsic  interest  so  great 
that  the  omission  of  them  from  an  outline  of  the  history  of  the 
law  of  land  would  not  be  justified.  I  have  endeavoured  on  the 
same  principle  to  select  the  original  authorities  which  fonn  the 
back-bone  of  this  treatise.  Experience  abundantly  proves  that 
no  account  can  give  so  vivid  and  trustworthy  a  picture  of  the 
history  of  law  as  the  original  authorities  themselves.  For 
the  purposes  of  legal  education  they  are  of  the  utmost  value. 
But  so  little  attention  has  been  paid  to  the  abundant  materials 
we  possess,  they  still  exist  for  the  most  part  in  so  inaccessible 
a  form,  that  they  can  hardly  be  said  to  be  available  to  the 
student.  The  principal  statutes  bearing  on  real  property 
are  sufficiently  conspicuous.  In  the  selection  of  extracts 
from  text-writers  and  reported  cases  there  was  more  difficulty. 
The  extracts  from  Bracton  occupy  a  large  space.     This   is,  I 


viii  Preface. 

hope,  justified  by  their  intrinsic  interest  and  the  historical 
importance  of  the  work  of  that  great  lawyer,  the  merits  of 
which  have,  I  think,  been  somewhat  underrated. 

The  difficulty  which  perpetually  encounters  those  who  have 
to  give  instruction  in  law  to  University  Students  is  this — 
where  is  the  line  to  be  drawn  between  principle  and  detail  ? 
what  is  the  point  to  which  the  teacher  can  usefully  go  without 
burdening  the  student  with  minor  rules  which,  however  useful 
as  pieces  of  professional  knowledge,  are  useless  for  educational 
purposes  ?  This  is  a  question  which  everyone  who  has  to 
encounter  the  difficulty  in  practice  must  solve  for  himself. 
In  the  present  work  I  have  endeavoured  to  draw  the  line  at 
the  point  to  which,  as  it  seems  to  me,  University  Students, 
even  if  they  enter  upon  the  study  not  as  preparatory  to  the 
practice  of  the  profession,  but  as  forming  part  of  a  liberal 
education,  might  properly  be  brought. 

The  proofs  of  the  fii'st  chapter  were  already  revised  before 
the  appearance  of  the  first  volume  of  Mr.  Stubbs'  excellent 
and  learned  Constitutional  History.  I  was,  however,  enabled 
to  insert  several  references  to  his  work,  and  in  one  or  two 
cases  to  introduce  some  modification  into  the  text.  I  have  also 
to  thank  him  and  other  friends  for  some  valuable  suggestions 
and  criticisms  on  the  first  chapter. 

I  have  refrained  from  over-burdening  the  notes  with  refer- 
ences to  authorities.  It  will  be  seen  that  I  throughout  refer 
to  Blackstone  as  the  great  authority  on  the  earlier  law,  and 
to  the  admirable  work  of  Mr.  Joshua  Williams  as  the  most 
available  treatise  on  the  law  of  the  present  day.  I  have  only 
inserted  such  references  to  other  works,  as  appeared  to  me 
to  be  proper  in  order  to  introduce  students  to  the  leading 
authorities  available  in  any  fairly  furnished  law  library. 


I  Paper  Bdildings,  Temple. 
January  15,  1875. 


CONTENTS. 

PART   I. 

CHAPTER   I. 

PAGE 

Introductory.     Elements  of  the  Law  of  Land  before  the  reign 

of  Henry  II      .         . i 

SECTION  I. 

Anglo-Saxon  Customary  Law. 

§  I.  Effect  of  the  Teutonic  Settlement i 

§  2.  Village  Communities       .....  .  .         .        ii 

§  3.  Relation  of  Lord  and  Man 14 

§  4.  Summary  of  Anglo-Saxon  Customary  Law      .         .         .         -19 

SECTION  II. 

Effects  of  the  Norman  Conquest 22 

§  I.  Relation  of  the  King  to  the  Land  .         .  .  .         .27 

§2.  Development  of  the  idea  of  Tenure 29 

§  3.  Relation  of  Lords  of  Districts,  or  Manors,  to  their  Tenants     .       :;4 

Authorities. 

1.  Anglo-Saxon  Grants  of  Bocland  ••....       46 
Gift  of 'Lands  to  a  Church  by  Uuihtraed  of  Kent.    a.d.  700  or 

715 46 

Gift  by  Oswald,  Bishop  of  Worcester,     a.d.  963         ...       47 
Charter  of  Cnut.     a.d.  1033 48 

2.  A  Feoffineiit  in  Fee  of  the  time  of  Henry  II      .         .         .         .50 


X  Contents. 

CHAPTER  II. 

PAGE 

State  of  the  Law  relating  to  Land  in  the  reign  of  Henry  II     .  52 

Extracts  from  Glanvill. 

§  I.  Supremacy  of  Curia  Regis  in  matters  relating  to  the  Freehold  58 

§  2.  Relation  of  Lord  and  Free  Tenant 61 

§  3.  Feudal  Incidents 64 

(i)  Reliefs,  Aids 64 

(2)  Guardianship  in  Chivalry  or  Knight  Service       ...  66 

(3)  Guardianship  in  Socage      .         .         .         .         ...  68 

(4)  Marriage  of  Female  Tenants 69 

§  4.  Escheat  and  forfeiture 70 

§5.  Descent  of  an  Estate  of  Inheritance 71 

§  6.  Alienation       ..........  74 

§  7.  A  Fine  of  Lands 77 

§  8.  Modes   of  Recovering  Seisin   of  Lauds.     Assizes    of  Mort 

D'Ancestor  and  of  Novel  Disseisin 79 

CHAPTER  III. 

state  of  the  Law  from  the  End  of  the  reign  of  Henry  II  to  the 

End  of  the  reign  of  Henry  III 85 


SECTION  I. 

dracts  from  Statutes. 

Magna  Carta          ........ 

89 

§  I.  Reliefs    . 

90 

§  2.  Guardian  and  Ward 

91 

§  3.  Marriage 

93 

§  4.  Widow's  Dower 

94 

§  5.  Scutage  and  Aids    . 

96 

§  6.  Forfeiture 

97 

§  7.  Alienation 

97 

§  8.  Mortmain 

98 

§  9.  Rights  of  the  Lord  of  a  Manor  over  the  Waste. 

Statute  0 

f 

Merton 

, 

98 

SECTION  II.  s 

Extracts  from  Bracton. 

§  10.  Tenures 99 

§  1 1 .  A  Common  Law  Conveyance  of  a  Freehold  Estate 

(1)  A  Charter  of  Feoffment 104 

(2)  Livery  of  Seisin 105 


Contents. 


XI 


PAGE 
§  1 2.  Villenaghim.     Non-free  Tenure    ...         ...     109 

§  13.  Alienation    .         .         .         .         .         .         .         .         •         .112 

§  1 4.  Differences  of  Freehold  Estates  in  respect  of  their  duration. 
Estates  of  Freehold  and  Estates  less  than  Freehold.  Con- 
ditional Gifts  .         .         .         .         .         .         .         .         •115 

§  15.  Tenancy  by  the  Curtesy  of  England 122 

§  16.  Terms  of  Years 123 

§17.  Servitudes  (Easements  and  Profits),     (i)  In  General    .         .127 
(2)  Rights  of  Common 135 


CHAPTER  IV. 


Legislation  of  Edward.  I 

§  I .  A  Manor  in  the  time  of  Edward  I 
Extenta  Manerii,  4  Edward  I,  Stat,  i 
Alienation  in  Mortmain  .... 

Statutum  de  Viris  Religiosis,  7  Edward  I 
Statute  of  Westminster  II,  13  Edward  I,  c.  32 

Estates  Tail 

Statute  of  Westminster  II,   13  Edward  I,  c.  i. 
Conditionalibus        ..... 

Rights  of  Common  Appurtenant 

Statute  of  Westminster  II,  13  Edward  I,  c.  46 

Alienation      ....... 

Statute  of  Westminster  III,  18  Edward  I^  cc.  I,  2,    3 
'  Quia  Emptores '...... 


§2. 
§3- 

§4- 

§5- 


De 


Donis 


146 

147 
148 

150 
152 
153 
153 

157 
160 
160 
162 
164 
164 


CHAPTER  V. 


Completion  of  the  Common  or  Earlier  Law 

§  I.  Leasehold  Interests  ....... 

Extract  from  Britton.     Terms  of  Years 

Extract  from  Littleton's  Tenures.     Tenant  for  Term  of  Years 

Sir  E.  Coke's  Translation         ...... 

§  1.  Estates  Tail 

Translation  of  tbe  Pleadings  in  Taltarum's  Case 
§  3.  Interests  in  Futuro.     Reversions  and  Remainders 

(i;  Reversions 

(2)  Remainders  (Vested  and  Contingent) 


166 

168 
172 

173 
174 
176 
182 

185 
186 
188 


xii  Contents. 

PAGE 

Extract  from  Brooke's  Abridgment,  Done  and  Remainder        .  197 

Extract  from  Littleton's  Tenures     ......  199 

Sir  E.  Coke's  Translation         .......  200 

§  4.  Joint  tenants,  Tenants  in  Common,  Coparceners     .         .         .101 

Extract  from  Littleton's  Tenures  (Sir  E.  Coke's  Translation)  202 

%  5.  Creditors'  Rights 207 

(i)  Remedies  by  Legal  Process       .         .         .         .         ,         .  207 

(2)  Mortgages .         .         .         .  209 

Extract  from  Littleton's  Tenures  (Sir  E.  Coke's  Translation)  211 

§  6.  Copyhold  Tenure     .         .         .         .         .         .         .         .         .213 

Extract  from  Littleton's  Tenures  (Sir  E.  Coke's  Translation)  220 

APPENDIX  TO  PART  I. 

§  T.  Place  ©rthe  Law  of  Real  Property  in   the  English   System  223 

Table  1 232 

§  2.  Rights  over  Things  Real  classified  in  respect  of  their  duration  233 

Table  II. 234 

§  3.  Rights  over  Tilings  Real  classified  in  respect  of  time  of  enjoy- 
ment  ...........  235 

Table  III 236 


PART    II. 

THE  MODERN  LAW  OF  REAL  PROPERTY. 
CHAPTEE  VI. 

Origin  and  Early  History  of  Uses  or  Equitable  Interests  in 

Land  ...........     239 

1.  15  Richard  II,  cap.  5 .         .     256 

2.  Extracts  from  Calendars  of  Pi-oceedings  in  Chancery  .         .     259 
(i)  Proceedings  in  Chancery  in  the  reign  of  Henry  V.  William 

Dodd  V.  John  Browning  and  another        ....     259 
(2)  WiUiam  of  Arundel,  Esq.  v.  Sir  Maurice  Berkeley,  Knight, 


id  oth 


ana  otners 


259 


(3)  Examination  by  the  Bishop  of  Bath  and  Wells,  Chancellor 
of  England,  of  two  persons  to  whom  one  Robert  Crody 
had  made  a  feoffment  by  parol,  on  his  death-bed,  in 
trust  for  his  wife  for  life,  with  remainder  to  his  daughter 
in  tail      ..........     261 


Contents.  xiii 

PAGE 

Year  Book,  4  Edward  IV,  8.  9.     Translation    .         .  .         .262 

Year  Book,  7  Edward  IV,  14.  8.     Translation         .         .         .     264 
Year  Book,  1 8  Edward  IV,  1 1 .  4.     Translation         .         .         .     265 


CHAPTER  VII. 

The  Statute  of  Uses  and  its  principal  effects  on  Modern  Con- 
veyancing           267 

§  I.  The  Statute  of  Uses 268 

27  Henry  VIII,  cap.  10.     An  Act  concerning  Uses  and  Wills  270 
§  2.  Effect  of  the  Statute  of  Uses  upon  the  power  of  dealing  with 

the  Legal  Estate  in  Lands       .         .         .         .         .         .         .276 

§  3.  Statute  of  Enrolments 287 

27  Henry  VIII,  cap.  16.     An  Act  concerning  Enrolments  of 

Bargains  and  Contracts  of  Lands  and  Tenements     .         .  289 

§  4.  Equitable  Estates  in  Lands  since  the  Statute  of  Uses      .         .  290 

Tyrell's  Case 295 

Girland  v.  Sharp 296 

Nevill  V.  Saunders 297 


CHAPTER  VIII. 

History  of  the  Law  of  "Wills  of  Land 298 

(i)  The  Act  of  Wills,  Wards,  and  Primer  Seisin,  whereby  a  man  may 

devise  two  parts  of  his  land.     32  Henry  VIII,  cap.  I  .         .     30S 

(2)  The  Act  for  the  Explanation  of  the  Statute  of  Wills.     34  and  35 

Henry  VIII,  cap.  5 310 

(3)  The  Act  for  the  Amendment  of  the  Laws  with  respect  to  Wills. 

7  William  IV  and  i  Victoria,  cap.  26 311 


CHAPTER  IX. 

Abolition  of  Military  Tenures 313 

12  Charles  II,  cap.  24 

An  Act  for  taking  away  the  Count  of  Wards,  and  Liveries,  and 
Tenures  in  Capite,  and  by  Knight's  Service,  and  Purveyance, 
and  for  settling  a  Revenue  upon  His  Majesty  in  lieu  thereof      .     316 


xiv  Contents. 

CHAPTER  X. 

PAGE 

Titles  or  Modes  of  acquisition  of  rigMs  over  Things  Eeal        .  321 

§  I.  Title  by  Alienation 322 

§  2.  Title  by  Succession           .......        ^.  337 

§  3.  Miscellaneous  Titles  : 

(i)  Escheat 343 

(2)  Loss  and  Acquisition  by  lapse  of  time        ....  345 

(3)  Compulsory  Acquisition  for  Public  Purposes     .         .         .  347 

(4)  Acquisition  under  Inclosure  Acts 347 

(5)  Compulsory  Enfranchisement  of  Copyholds        .         .         .  348 

(6)  Bankruptcy 349 

Table  IV 36° 

Index 35^ 


ERRATA. 

p.  41,  1.  20,  for  '  adscriptae,'  read  '  adscripti.' 

p.  67,  1.  5,  for  'bebet,'  read  '  debet.' 

p.  76,  last  line,  for  '  totam,'  read  '  totum.' 

p.  81,  note,  1.  I,  for  'devisam,'  read  '  divisam.' 

p.  Ill,  1.  18,  for  '  quid,'  read  'quod.' 

p.  113,  1.  20,  for  '  29,'  read  '  24.' 

p.  128,  last  line,  for  '  easements,'  read  '  servitudes.' 

p.  143,  note,  1.  1,  dele  'appendant.' 

p.  146,  note  1, 1.  2.  After  '  Rolls,'  read  '  from  MSS.  in  the  Libraries  of 
Cambridge  University  and  Lincoln's  Inn,  four  volumes  called  Year  Books, 
containing  reports  of  cases  decided  on  the  itinera  of  the  judges,  and  at 
Westminster,  in  the  20th  and  21st,  21st  and  22nd,  30th  and  31st,  and  32nd 
and  33rd  years  of  Edward  I.' 

p.  158,  mote  I,  line  i,  for  '  demand,  and,'  read  'demand  land.' 

p.  231,  note  3,  for  '  165,  n.  2,'  read  '  166,  n.' 


PAET    I. 


CHAPTER  I. 

INTRODUCTORY.   ELEMENTS  OF  THE  LAW  OF 
LAND  BEFORE  THE  REIGN  OF  HENRY  II. 


The  English  law  of  land  is  of  a  mixed  origin.  The  customs 
of  the  early  Teutonic  invaders,  the  inevitable  effect  of  conquest 
and  settlement  of  the  land  on  a  large  scale,  the  gradual  and 
what  may  be  called  the  natural  growth  of  feudal  ideas,  the  effect 
of  the  Norman  Conquest  in  developing  these  ideas  into  a  system 
of  law  and  in  importing  doctrines  unknown  before,  the  subse- 
quent influence  of  the  Roman  and  Canon  law,  all  these  are 
elements  of  which  account  must  be  taken  in  attempting  to  trace 
the  growth  of  the  law  of  land. 

By  the  time  of  the  reign  of  Henry  II  a  definite  system  of  law 
may  be  said  to  have  arisen.  This  will  be  the  subject  of  the  next 
chapter.  In  the  present  an  attempt  will  be  made  to  take  some 
account  of  the  elements  out  of  which  the  system  of  the  law  of 
land  ultimately  grew. 

SECTION  I. 

Anglo-Saxon  Customary  Law. 

§  I.  Effect  of  the  Teutonic  Settlement. 

The  earliest  element  in  the  English  law  of  land  is  certainly 
the  Teutonic.  Whatever  traces  may  have  existed  of  the  laws  of 
Rome  at  the  time  of  the  earliest  Teutonic  invasion,  no  vestige  of 
them  is  to  be  found  in  the  evidence  we  possess  of  the  Anglo- 

B 


3  Anglo-Saxon  Law.  [chap.  i. 

Saxon  customary  law  ^.  The  conquerors,  unlike  the  tribes  which 
overran  Italy,  Gaul  and  Spain,  retained  the  customs,  the  religion, 
and  the  language  which  they  brought  with  them  uninfluenced 
by  the  people  whom  they  dispossessed.  Moreover,  those  customs 
were  of  pure  home-growth,  without  any  admixture  of  the  ele- 
ment of  Roman  law  or  civilisation.  '  Our  forefathers  came  from 
lands  where  the  Roman  eagle  had  never  been  seen,  or  had  been 
seen  only  during  the  momentary  incursions  of  Drusus  and 
Germanicus  ^.' 

We  can  only  conjecture  the  probable  effect  of  the  dispossession 
of  the  old  inhabitants,  and  of  the  resettlement  of  the  land  by  the 
successive  bodies  of  invaders  in  the  fifth  and  sixth  centuries. 
In  primitive  times,  when  a  body  of  invaders  has  succeeded  in 
conquering  a  portion  of  territory,  it  settles  down  upon  the  land 
which  it  has  won,  and  that  territory  is  looked  upon  as  the 
property  of  the  community  at  large,  rather  than  of  the  individual 
chief,  king,  or  leader.  At  the  same  time  the  presence  of  the 
chief — the  leader  whose  personal  or  hereditary  eminence  inspires 
his  followers  with  the  belief  in  his  kinship  with  the  gods — is  a 
necessary  element  in  the  process  of  conquest  and  settlement. 
But  he  is  not  at  first  regarded  as  owner  of  the  land.  No  doubt 
the  chief  would  as  part  of  his  functions  regulate  the  original 
distribution  and  the  common  cultivation  of  the  land  ^;  but  this 
he  would  do  as  head  or  leader  of  the  community,  not  as  having 

*  !Mr.  Finlason,  in  the  preface  to  his  edition  of  Reeves'  History  of  English 
Law,  thinks  that  the  Roman  law  lingered  on  and  was  adopted  by  the 
conquerors.  There  appears,  however,  to  be  no  evidence  in  favour  of  this 
view.  Probably  some  few  doctrines  and  practices  of  Roman  law  were 
introduced  by  the  clergy  after  the  adoption  of  Christianity,  especially  that 
of  disposition  by  will  (compare  Tacitus,  Germania,  c.  20,  '  nullum  testa- 
nientum '),  but  the  large  infusion  of  Roman  law  which  exists  in  our  own 
was  mainly  of  much  later  introduction.  See  Stubbs'  Constitutional  His- 
tory, i.  p.  62. 

2  Freeman's  Norman  Conquest,  i.  20. 

^  The  distribution  seems  to  have  taken  place  by  lot  under  the  super- 
intendence of  the  chief.  The  portion  allotted  to  the  various  companions 
of  the  chief  is  called  ♦  eSel,'  '  hid,'  or  '  alod.*  See  Kemble's  Saxons  in 
England,  i.  90,  and  Stubbs'  Constitutional  History,  i.  p.  71. 


SECT.  I.  §  I.]  Folcland.  3 

appropriated  the  soil  to  himself  and  gi'anted  it  out  to  his  fol- 
lowers. What  the  community  had  won  would  be  I'egarded  as 
belonging  to  the  community  at  large. 

However  its  origin  is  to  be  accounted  for,  this  idea  as  to 
property  in  land  is  nearly  universal  in  primitive  communities. 
The  land  is  regarded  as  the  property  of  the  community  at  large, 
and  individuals  as  a  general  rule  have  only  temporary  rights 
of  possession  or  enjoyment  upon  the  lands  of  the  comnmnity. 
The  land  is  public  land — ager  puhlicus — folcland,  or  land  of 
the  people'.  Dealing  with  the  folcland  is  the  most  important 
of  the  functions  of  the  chief  of  the  community  in  time  of  peace. 
In  dealing  with  it  he  always  acts,  not  as  supreme  landowner, 
but  as  the  head  of  the  community,  in  conjunction  with  the 
leaders  of  the  second  rank,  his  immediate  followers,  the  comites 
(gesiths)  of  early  Teutonic  institutions^,  who  become  in  process 
of  time,  in  conjunction  with  the  great  ecclesiastics  after  the 
introduction  of  Christianity,  the  principal  membei's  of  the 
witenagemot  or  assembly  of  the  wise. 

Probably  from  the  date  of  the  earliest  settlement  some  oppo- 
sition to  the  idea  of  folcland  must  have  been  found  in  the  pro- 
prietary rights  over  the  house  and  its  enclosure.  It  is  reasonable 
to  suppose  that  the  house  which  the  freeman  had  built,  and 
the  curtilage  which  he  had  enclosed,  was  regarded  as  his  own 
property*,  apart  from  any  ultimate  or  reversionary  right  residing 
in  the  community  or  its  chief.  We  shall  find  that  in  later  times 
house  property  in  towns  is  regarded  as  of  a  more  absolute  and 
independent  character  than  property  in  agricultural  or  common 
land  *.  To  some  extent  also  the  land  allotted  to  individuals  or 
families  for  agricultural  purposes  was  regarded  as  their  own 
individual  property.     This  idea  Avas  however,  as  will  be  shown 


'  See  as  to  folcland  Freeman's  Norman  Conquest,  i.  ch.  iii.  §  2  ;  Kemble's 
Saxons  in  England,  i.  p.  289  ;  Allen  on  the  Royal  Prerogative,  p.  135. 

*  Tacitus,  Germania,  cc.  13,  14.     See  below. 

^  'Suam  quisque  domum  spatio  circumdat.' — Tacitus,  Germania,  c.  16. 

*  As  to  tenure  in  burgage,  see  below. 

B  2 


4  Anglo-Saxon  Law.  [chap.  i. 

presently,  modified  by  tlie  coexisting  inglits  of  the  rest  of  the 
community. 

As  political  organisation  proceeds,  when  the  tribe  becomes 
the  principality  or  petty  kingdom,  the  land  of  the  community 
naturally  falls  under  the  dominion  of  the  chief  or  king.  He 
becomes,  in  a  ^euse  somewhat  different  from  that  in  which  the 
expi'ession  would  be  used  in  later  times,  a  territorial  magnate. 
The  royal  revenue  is  derived  mainly  from  the  land.  The  king 
makes  grants  of  it  to  his  followers,  and,  after  the  introduction 
of  Christianity,  to  religious  houses.  He  exercises  for  his  own 
benefit  extensive  rights  over  it. 

In  the  Teutonic  kingdom  are  reproduced  on  a  larger  scale 
the  chai-acteristics  of  the  smaller  communities  of  which  it  is 
an  aggregate.  "When  the  kingdom  has  attained  its  full  develop- 
ment it  appears  that  the  folcland  might  be  dealt  with  in  one  of 
three  ways.  Either  grants  might  be  made  of  it  by  the  king  and 
his  witan,  or  in  other  words  the  community  might  grant  it  to 
individuals  to  be  held  in  severalty  as  individual  pi-operty,  losing 
its  character  as  public  land  ;  or  it  might  continue  to  retain  its 
character  as  folcland,  and  temporary  rights  of  enjoyment  or 
possession  might  be  permitted  on  definite  terms  to  individuals ; 
or  there  might  exist  no  separate  individual  rights  over  it  at 
all,  and  the  land  might  remain  uncultivated  and  used  by  the 
members  of  the  community  for  common  pasturage,  for  cutting 
turf,  wood,  and  the  like.  Each  of  these  modes  of  dealing  with 
the  folcland  must  be  shortly  commented  on. 

(i)  From  very  early  times  it  was  common  to  gi'ant  away 
portions  of  the  public  land  to  religious  bodies  or  to  individuals, 
so  that  the  land  ceased  to  be  public  land  and  became  what  we 
should  style  corporate  or  private  property  ^  The  grants  were 
effected  by  the  king  as  the  chief  of  the  community,  by  and  with 
the  assent  of  his  witenagemot  or  assembly  of  the  wise,  by  means 
usually  of  a  '  book '  or  charter "-.     Land  thus  granted  was  said 

•  Kemble's  Saxons  in  England,  i.  301. 

2  Whether  the  land  was  actually  considered  as  transfeiTed  by  the  book, 
as  by  a  modern  deed  under  8  and  9  Vic.  c.  106,  or  whether  any  additional 


SECT.  I.  §  I.]     Fuldand,  Boclaml,  Alodial  Land.  5 

to  be  '  booked '  to  the  grantee,  and  was  called  bocland.  Thus 
bocland  as  opposed  to  folcland  comes  to  mean  land  owned  by 
private  persons  or  churches  ;  who  or  whose  predecessors  are,  or 
at  least  are  supposed  to  have  been,  grantees  of  the  community. 
The  practice  seems,  after  the  introduction  of  Christianity,  to  have 
prevailed  chiefly  in  favour  of  religious  houses,  and  in  this  way 
the  great  ecclesiastical  corporations  acquired  their  property. 
Frequent  gifts  were  also  made  to  individuals,  chiefly  the  king's 
thanes  or  ministri  ^. 

Nearly  if  not  quite  coextensive  with  the  conception  of  bocland 
was  that  of  alodial  land.  The  term  'alod,'  'alodial,'  did  not 
however  have  any  necessary  reference  to  the  mode  in  which 
the  ownership  of  land  had  been  conferred  ;  it  simply  meant 
land  held  in  absolute  ownership,  not  in  dependence  upon  any 
other  body  or  person  in  whom  the  proprietary  rights  were 
supposed  to  reside,  or  to  whom  the  possessor  of  the  land  was 
bound  to  render  service  ^. 

As  a  general  rule,  when  a  grant  of  folcland  was  made  to  an 
individual  to  hold  as  bocland,  it  is  expressed  in  the  gift  itself 
that  he  is  to  hold  the  land  free  from  all  burdens,  that  he  is  to 
be  under  no  obligation  to  render  anything  in  the  shape  of 
money  payment  or  services  of  any  kind  to  the  grantor  of  the 
land,  with  the  exception  of  the  threefold  service,  the  trinoda 
necessitas,  to  which  all  lands  were  subject.     Tliis  consisted  of 

ceremony  resembling  livery  of  seisin  was  requisite  (see  below),  is  a  point 
on  which  I  have  not  been  able  to  find  authority.  The  analogy  of  the 
practice  of  other  nations  would  seem  to  show  that  something  like  delivery 
of  a  piece  of  turf,  a  bough,  &c.,  would  be  considered  essential.  Kemble, 
Cod.  Dipl.  i.  V,  seems  to  think  that  this  was  so  in  early  times,  that  the 
practice  then  went  out,  and  the  book  and  taking  possession  under  it  was 
sufficient,  till  the  practice  was  revived  by  the  Normans  under  the  form 
of  livery  of  seisin.  See  too  Palgrave's  Rise  and  Progre^iS  of  the  English 
Commonwealth,  ii.  ccxxvii. 

*  And  hence  the  expression  tain-  or  thane -land.  This  seems  to 
mean  not  a  particular  species  of  tenure,  but  land  which  was  as  a  fact 
held  or  owned  by  a  king's  thane. 

^  See  Freeman,  i.  90.  As  to  the  later  meaning  of  alodial  land,  see 
below. 


2 


6  Anglo-Saxon  Law.  [chap.  i. 

the  duty  of  rendering  military  service  (expeditio),  and  of  repair- 
ing bridges  and  fortresses  (pontis  arcisve  constructio).  These 
were  duties  towards  the  community  at  large  imposed  on  all 
landholders,  quite  distinct  from  the  feudal  services  of  later 
times  ^. 

It  is  also  generally  expressed  in  the  charter  that  the  grantee 
of  the  land  is  to  be  entitled  to  gi-ant  the  land  away  to  whom- 
soever he  pleases  in  his  lifetime,  or  to  leave  it  by  his  last  will, 
and  that,  if  not  disposed  of,  it  is  to  descend  to  his  repre- 
sentatives^. These  powers  however  seem  to  have  depended 
upon  the  form  of  the  gift  as  expressed  in  the  charter  ;  the  power 
of  alienation  might  be  restricted  so  that  the  land  could  not  be 
granted  away  from  the  kindred*,  or  the  descent  of  the  land 
might  be  confined  to  lineal  descendants,  or  to  heirs  male  or 
female.  In  these  respects  it  was  a  principle  of  Anglo-Saxon 
customary  law  that  the  nature  and  extent  of  the  rights  of  the 
grantee  depended  upon  the  form  of  the  gift  ^. 

The  king  himself  might  be  tbe  grantee  under  one  of  these 
grants".  In  that  case  he  held  the  land  thus  granted  like  any 
other  private  individual,  it  was  his  private  property  which  he 
could  dispose  of  as  he  pleased. 

(2)  Besides  grants  of  folcland  to  be  held  as  bocland  or  as 


^  See  Kemble's  Cod.  Dipl.  i.  Hi,  and  Stubbs'  Const.  Hist.  i.  pp.  76,  190. 

^  Or  person  to  whom  the  land  is  granted.  This  termination  is  always 
used  in  a  passive  sense. 

'  The  capacity  of  selling  the  land  is  often  mentioned  in  Domesday  as 
a  characteristic  of  absolute  ownership.  See  Freeman,  vol.  iv.  p.  732; 
and  Allen  on  the  Eoyal  Prerogative,  p.  145. 

*  'The  man  who  has  bocland,  and  which  his  kindred  left  him,  then 
ordain  we  that  he  must  not  give  it  from  his  "nisegburg"  [kindred],  if 
there  be  writing  or  witness  that  it  was  forbidden  by  those  men  who  at  first 
acquired  it,  and  by  those  who  gave  it  to  him,  that  he  should  do  so ;  and 
then  let  that  be  declared  in  the  presence  of  the  king  and  of  the  bishop 
before  his  kinsmen.' — Laws  of  Alfred,  cap.  41;  Stubbs,  Select  Charters,  p.  62. 

5  See  Kemble's  Saxons  in  England,  i.  p.  308  ;  Codes  Diplomaticus,  i. 
Introduction,  pp.  xxxii-xxxvi. 

•5  See  a  grant  by  yEthelwulf  to  himself,  a.d.  847,  Cod.  Dipl.  vol.  ii. 
No.  cclx. 


SECT.  I.  §  I.]  Folcland.  7 

private  property,  it  seems  also  to  have  been  common  to  allow 
individuals  temporary  or  possessory  rights  over  folcland  without 
altering  its  character  as  public  land,  the  reversion  (to  use  a 
later  expression)  still  remaining  in  the  community  at  large,  or 
in  tlie  king  as  the  representative  of  the  community.  It  seems 
that  it  was  not  unusual  for  a  relation  resembling  what  would  in 
later  times  be  called  a  tenure  to  be  created  between  the  com- 
munity or  its  chief  and  the  person  to  whom  rights  of  separate 
enjoyment  over  the  folcland  had  been  granted.  There  is  evidence 
that  in  some  cases  various  rents,  dues,  or  services  in  money  or 
kind  had  to  be  rendered  for  the  enjoyment  of  riglits  over  the 
folcland  \  On  the  whole,  however,  we  possess  but  little  infor- 
mation as  to  the  relations  of  the  possessor  of  folcland  to  the 
king  or  the  community,  or  as  to  the  duties  and  services  under 
which  it  was  held.  That  such  rights  over  folcland  were  some- 
times made  the  subject  of  disposition  by  its  individual  possessors, 
but  that  this  could  only  be  carried  out  by  the  assistance  of  the 
king  as  the  head  of  the  community,  appears  from  a  curious 
document  of  the  date  a.d.  871-889^,  purporting  to  be  a  will  of 
a  certain  Alfred,  in  which,  after  disposing  of  his  bocland,  he 
requests  the  king  to  allow  his  son  to  succeed  to  the  folcland 
which  he  himself  holds,  and  if  not,  he  leaves  his  son  instead  an 
equivalent  out  of  his  boclands.  This  shows  that  in  all  proba- 
bility no  individual  rights  enjoyed  over  folcland  could  be 
permanently  alienated  either  inter  vivos  or  by  will  without  the 
consent  of  the  community  or  its  chief. 

Any  person  who  had  proprietary  rights  over  land,  whether 
he  were  only  in  the  beneficial  occupation  of  folcland,  or  were 
an  owner  of  bocland,  might  in  his  turn  grant  to  another  the 


1  See  Kemble's  Saxons  in  England,  i.  294-298  ;  Allen's  Royal  Pre- 
rogative, p.  134  ;  Stubbs'  Const.  Hist.  i.  p.  76. 

^  Cod.  Dipl.  ii.  120,  No.  cccxvii.  Kemble  (Saxons  in  England,  i.  p.  iSl, 
note  i)  has  collected  several  curious  instances  of  requests  by  testators  to 
the  king  that  their  wills  might  be  allowed  to  stand.  These  wills  must,  one 
would  think,  relate  to  interests  over  the  folcland.  Bocland  was  generally 
or  universally  the  subject  of  free  disposition  by  will. 


8  Anglo-Saxon  Law.  [chap.  i. 

power  of  beneficial  enjoyment  of  the  land  on  such  terms  as 
might  be  agreed  on  between  them.  Such  an  interest  was 
regarded  as  less  than  that  enjoyed  by  the  grantor  himself. 
At  the  expiration  of  this  smaller  or  shorter  interest  the  land 
would  revert  to  the  grantor.  Land  thus  granted  or  let  was 
called  laenland.  This  practice  was  especially  common  on  ec- 
clesiastical lands.  We  find  instances  of  lands  leased  for  two 
or  three  lives  ^,  or  for  other  periods,  with  rents  reserved  in 
money,  in  kind,  or  in  labour^.  The  conception  of  the  legal 
effect  of '  loans '  of  lands  would  be  that  the  property  or  dominion 
remained  in  the  lessor  or  lender,  the  person  having  the  '  laen ' 
possessing  only  the  usufructuary  enjoyment  to  a  greater  or  less 
extent  according  to  the  terms  of  the  loan  ^.  Thus  if  the  latter 
incurred  forfeiture  for  treason  the  rights  of  the  lessor  would 
not  be  affected  *. 

(3)  Besides  the  folcland  dealt  with  by  grant  and  thus  tui^ned 
into  bocland,  and  the  public  land  which  retained  its  character 
but  was  enjoyed  by  individuals,  there  remained  a  very  large 
proportion  of  the  land  of  the  country  lying  waste  and  vinculti- 
vated,  and  used  only  for  pasture  of  sheep  and  cattle,  for  feeding 
swine  on  the  acorns  and  beechmast,  or  for  supplying  wood  for 
building,  repairs,  and  fuel.  What  proprietary  rights  were 
recognised  over  land  of  this  character  % 

It  was  primarily  regarded  as  the  common  stock  from  which 
grants  might  be  made.  Bseda  in  the  eighth  century  speaks  of 
it  as  land  which  ought  to  be  granted  to  ecclesiastics  or  to 
warriors,  but  instead  of  this  proper  use,  '  persons  who  have  not 
the  least  claim  to  the  monastic  character  have  got  so  many  of 

*  See  specimen  below.  Very  commonly,  however,  the  land  was  leased 
or  lent  for  the  life  of  the  lessee.  See  specimens  of  these  '  conventiones  '  in 
the  Domesday  of  St.  Paul's.     See  below. 

*  See  as  to  laenland,  Kemble's  Saxons  in  England,  i.  p.  310. 
3  Cod.  Dipl.  i.  Ixii. 

*  See  the  case  of  Helmstan,  Kemble's  Saxons  in  England,  i.  p.  311. 
It  seems  that  the  laen  was  in  this  country  rather  the  precursor  of  the 
lease  or  leasehold  than  of  the  feudum  or  beneficium.  In  Germany  hoW» 
ever,  lehn  =  feudum,  leknrecht  =  feudalism,  feudal  system. 


SECT.  I.  §  I.]  Waste  Land.  9 

these  spots  into   their  power  under  the  name  of  monasteries, 
that  there  is  really  now  no  place  at  all  where  the  sons  of  nobles 
or  veteran  warriors  can  receive  a  grant  \'     When  the  country 
was  brought  under  the  government  of  a  single  king,  this  land 
seems   to   have  been   regarded  as  in   an  especial  manner  the 
property  of  the  king,  and  is  frequently  spoken  of  as  the  king's 
folcland^     Besides  the  grants   of  whole  districts  of  this  land 
to  be  held  as  bocland,  we  frequently  find  rights  of  pasturage 
and  other  beneficial  rights  over  it,  granted  away  to  individuals 
by  the  king  in  the  usual  form  I    There  can  be  but  little  doubt 
that  this  unoccupied  land  came  to  be  more  and  more  regarded 
as  the  land  of  the  king — terra  regis.    And  hence  grew  in  later 
times  the  conception  that  all  the  land  was  originally  vested  in 
the  crown*,  that  the  king  is  prima  facie  the  owner  of  all  unoc- 
cupied land,  even  of  the  shore  of  the  sea  below  high-water-mark. 
Sometimes   the    king  would   have  exclusive    rights    over   this 
unoccupied  land,  more  commonly  his  rights  would  be  shared 
by  those  of  the  inhabitants  of  the  neighbouring  villages  ^     In 
early  times  these  rights  were  probably  regarded  as  rights   of 
common  on  public   lands  which   the  king  would   share   with 
others.     Later  the  property  was  looked  on  as  vested  in  the 
king,  the  commoners  having  rights  in  alieno  solo. 

Thus  the  history  of  the  folcland  seems  to  bear  some  relation 

1  Epistola  ad  Ecgbirhtum  Arclnepiscopum,  quoted  in  Kemble's  Saxons 
in  England,  i.  p.  290. 

2  See  the  short  treatise  of  Professor  Nasse,  '  On  the  Agricultural  Com- 
munity of  the  Middle  Ages,'  translated  by  Col.  Ouvry  (Macmillan,  1871), 

p.  28. 

3  Thus  Offa  of  Mercia  in  772  grants  to  ^thelnoth,  Abbot  of  SS.  Peter 
and  Paul,  lands  '  cum  campis  et  silvis  vel  omnibus  ad  se  pertinentibus  bonis 
et  ad  pascendum  porcos  et  pecora  et  jumenta  in  silva  regali  aeternaliter 
perdono,  et  unius  capreae  licentiam  in  silva  quae  vocatur  Ssenling  ubi 
meae  vadunt.'     Cod.  Dipl.  cxix. 

*  'Tout  fuit  in  luy  et  vient  de  luy  al  commencement.'  (Year  Book, 
24  Edw.  Ill,  65,  quoted  in  Blackstone,  ii.  p.  51,  note.) 

5  See  Cod.  Dlpl.  cclxxvi,  where  there  is  a  grant  of  a  villa  '  et  commu- 
nionem  marisci  quae  ad  illam  villam  antiquitus  cum  recto  pertinebat ;'  and 
cclxxxviii ;  and  see  Kemble's  Introduction  to  Cod.  Dipl.  i.  p.  xl. 


lo  Anglo-Saxon  Law.  [chap.  i. 

to  the  history  of  the  nation.  It  is  at  first  the  land  occupied 
by  a  conquering  tribe.  Gradually  individuals  and  communities  ^ 
acquire  rights  of  ownership  over  districts  of  this  land.  Not- 
withstanding this,  even  where  the  land  has  become  thus  appro- 
priated, the  fundamental  idea  that  the  land  is  or  was  public 
land  is  probably  never  wholly  lost  sight  of.  As  the  community 
acquires  tlie  characteristics  of  a  principality  or  kingdom,  the 
actual  ownership  of  the  unoccupied  parts  of  the  public  land 
and  a  soi-t  of  suzerainty  over  the  occupied  parts  becomes  vested 
in  the  king.  He  always  speaks  of  the  folcland  by  some  such 
expression  as  terra  juris  mei,  pars  teUuris  meae.  And  through- 
out the  country  the  claims  of  the  king  to  certain  dues,  services, 
and  proprietary  rights,  varying  in  different  localities,  is  recog- 
nised ^. 

When  the  smaller  kingdoms  merge  in  the  kingdom  of 
England,  the  king  of  England  becomes  supreme  lord  of  all 
the  land.  There  are  however  spread  throughout  the  country 
territorial  magnates,  partly  the  successors  of  the  princes  whose 
petty  lordships  or  principalities  came  to  be  held  in  subordination 
to  and  dependence  on  the  king  of  the  whole  country,  partly 
bishops,  churches,  or  great  men  who  had  acquired,  by  grant  or 
otherwise,  large  tracts  of  land.  These  territorial  magnates  are 
supreme  over  the  land,  both  occupied  and  unoccupied,  within 
their  districts.  But  they  are  also  subordinate  to  the  king  of  the 
nation;  when  therefore  grants  are  made  by  such  persons,  it 
is  worthy  of  observation  that  they  are  almost  always  expressed 

*  See  below. 

''  We  hear  frequently  of  royal  rights  of  pasturage,  of  rights  of  free 
quarter  for  royal  messengers,  of  having  the  royal  huntsmen,  horses,  dogs, 
and  hawks  kept.  (See  Cod.  Dipl.  i.  liv  ;  Kemble's  Saxons  in  England, 
i.  293.)  Compare  Cnut's  law,  Ixx  :  '  I  command  all  my  reeves  that  they 
justly  provide  for  me  out  of  my  own  property,  and  maintain  me  therewith, 
and  that  no  man  need  give  me  anything  as  farm  aid  (feorme-fultume), 
unless  he  himself  be  willing.'  (Thorpe,  Ancient  Laws  and  Institutes. 
p.  413,  ed.  1840.)  It  appears  from  this  passage  that  the  king  had  certain 
rio-hts  in  the  various  villae  which  were  looked  after  by  reeves  or 
bailiffs. 


SECT.  I.  §  2.]  Village  Communities.  ii 

to  be  with  the  assent  of  the  king.  Thus  the  king  is  acknow- 
ledged as  a  sort  of  ovei'-lord,  whose  consent  is  necessary  to 
enable  the  inferior  magnate  to  dispose  of  the  folcland  within 
his  district  ^ 

§  2.    Village  Communities. 

Besides  the  opposition  of  folcland  and  boclaud,  the  pro- 
prietary rights  over  each,  and  the  relation  of  the  king  or 
other  chief  to  the  land,  there  is  another  feature  of  Teutonic 
custom  which  must  be  taken  into  account  in  an  investigation 
of  the  early  history  of  the  English  law  of  land.  There  has  been 
of  late  much  attention  bestowed  on  the  history  of  the  '  Village 
Community '  of  the  Teutonic  races  ^.  It  appears  that  England 
does  not,  as  has  been  supposed,  present  an  exception  to  the 
agrarian  customs  which  are  found  prevailing  in  other  nations 
of  Teutonic  oi-igin.  We  may  reasonably  conjecture  that  when 
the  bodies  of  Teutonic  invaders  occupied  the  conquered  land, 
they  broke  up  into  small  village  communities,  reproducing  the 
characteristics  which  undoubtedly  prevailed  in  the  land  from 
which  they  came. 

Each  community  occupied  a  territory  or  mark  which  was  a 
portion  of  the  public  land.  This  territoiy  was  divided  into 
three,  or  rather  four  portions.  There  was,  first,  the  township 
in  which  the  houses  and  their  surroundings  are  appropriated 
and  held  by  the  heads  of  families  in  individual  proprietorship. 
These,  as  has  been  already  said,  must  from  the  earliest  times 
have  been  held  as  individual  rather  than  as  public  or  common 
property. 

Secondly,  there  was  the  arable  portion,  or  the  district  of  cul- 
tivated laud,  in  which  sepai'ate  plots  were  held,  for  a  time  at 

'  See  the  grant  of  Oswald  Bishop  of  Worcester,  given  below. 

^  I  refer  especially  to  the  writings  of  Von  Maurer,  and  to  Professor  Nasse's 
short  work  already  quoted.  See  also  Sir  H.  Maine's  Village  Communities, 
Lects.  iii  and  v  ;  and  Mr.  Morier's  essay  in  the  volume  on  Land  Tenure 
published  by  the  Cobden  Club  (MacmiUan,  1870).  See  also  the  description 
of  the  'Mark  System'  in  Stubbs'  Const.  Hist.  i.  pp.  49-52. 


12 


Arifflo-Saxon  Law.  [chap.  i. 


all  events,  in  severalty,  by  individual  members  of  the  community, 
subject  to  certain  customary  regulations  as  to  common  culti- 
vation and  enjoyment.  The  most  common  of  these  were  that 
the  arable  land  should  be  divided  into  three  fields  (campi),  one 
of  which  should  lie  fallow  every  third  year,  and  that  the  whole 
community  should  have  rights  of  common  pasturage  on  the 
fallow  portion,  and  on  the  stubbles  of  the  cropped  fields  at 
certain  periods  between  harvest  and  seed-time.  It  appears 
probable  that  these  three  fields  were  not  always  on  the  same 
spot ;  fresh  land  would  be  broken  up,  and  land  which  had  been 
cultivated  would  go  out  of  cultivation  and  be  used  only  for 
pasturage  \  It  would  necessarily  follow  that  the  portions  of 
land  allotted  to  individuals  were  not  held  by  them  as  permanent 
or  sejiarate  property ;  they  were  beneficially  enjoyed  for  a  time 
and  then  returned  to  the  common  stock,  the  proprietor  receiving 
other  allotments  in  their  place. 

The  meadow-land  was  dealt  with  in  a  similar  way.  It  was 
open  for  common  pasturage  during  the  interval  between  hay- 
harvest  and  the  new  growth  of  the  grass.  It  was  then  fenced 
off  in  separate  parcels,  which  were  for  the  time  appropriated  to 
the  various  heads  of  families. 

Lastly,  there  was  the  common  land  or  wastes  not  appropriated 
to  individuals  at  all,  on  which  the  whole  community  had  rights 
of  pasturage,  wood-cutting,  or  the  like.  The  various  rights 
over  this  territory  were  regulated  by  the  village  assembly,  con- 
sisting of  all  the  freemen  ^ 

1  Nasse,  p.  lo ;  and  see  Tacitus,  Germania,  c.  26,  and  Stubbs,  Const. 
Hist.  i.  p.  19. 

2  It  is  very  common  at  the  present  day  to  find  that  an  idea  still  prevails 
that  the  parishioners  assembled  in  vestry  have  the  power  of  regulating 
rights  over  the  waste  lands  within  the  parish.  Acts  of  control  are  frequently 
exercised  over  such  lands  by  parish  officers.  As  will  be  pointed  out 
later,  there  is  at  the  present  day,  except  under  special  circumstances,  no 
legal  justification  for  this  notion ;  it  doubtless  descends  from  a  time  before 
the  lawyers  had  precisely  defined  the  relative  rights  of  the  lord  of  the 
manor  and  of  commoners  having  common  appendant,  appurtenant,  or  in 
gross.     See  the  observations  of  Lord  Chancellor  Hatherley  in  Warrick 


SECT.  I.  §  2.]      Relation  of  Lord  and  Man.  13 

Traces  of  tbis  village  system  became  indelibly  fixed  in  our 
law.  The  house  with  its  sun'oundings  was  regarded  as  the 
absolute  property  of  the  possessor.  Hence  probably  in  towns 
and  larger  villages  arose  the  conception  of  tenui'e  in  burgage, 
the  form  of  tenure  which  in  feudal  times  came  the  nearest  to 
absolute  property  in  land.  The  practice  of  re-allotting  from 
time  to  time  portions  of  the  arable  or  meadow  land  is  occa- 
sionally noticed  in  later  times  \  The  right  of  pasturage  on  the 
arable  land  or  'common  field,'  the  right  that  is  which  each 
cultivator  had  to  put  his  cattle  on  the  plots  of  his  neighbours 
as  well  as  his  own,  and  for  that  purpose  to  have  the  fences 
removed,  appears  in  our  law  under  the  name  of  common  of 
shack  ^.  The  right  of  common  pasturage  during  some  months 
of  the  year  on  meadow-lands,  which  for  the  gi-eater  part  of  the 
spring  and  summer  are  appropriated  for  hay  to  individuals, 
is  still  more  common.  Lands  subject  to  these  rights  are  often 
known  as  Lammas  lands,  Lammas-day  (August  13,  0.  S.)  being 
the  time  at  which  the  common  rights  begin  ^.  Lastly,  the  rights 
of  common  enjoyment  over  the  waste  became  curtailed,  and 
transformed  into  rights  which  at  some  forgotten  period  the  lord 
of  the  manor  is  supposed  to  have  granted  to  his  tenants  or 
to  neighbouring  freeholders. 

V.  Queen's  College,  Oxford;  Law  Eeports,  6  Chancery  Appeals,  p.  723, 
and  see  below,  eh.  iii.  §  i?- 

^  See  Coke  upon  Littleton,  4  a.    Pratt  v.  Graeme,  15  East's  Reports,  235. 

^  See  Corbet's  case.  Coke's  Reports,  part  vii.  5  a.  'In  the  county  of 
Norfolk  there  is  a  special  manner  of  common  called  Shack,  which  is  to  be 
taken  in  arable  land,  after  harvest  until  the  land  be  sowed  again,  &c.  ; 
and  it  beo-an  in  ancient  time  in  this  manner  :  the  fields  of  arable  land  in 
this  country  consist  of  the  lands  of  many  and  divers  several  persons,  lying 
intermixed  in  many  and  several  small  parcels,  so  that  it  is  not  possible 
that  any  without  trespass  to  the  others,  can  feed  their  cattle  in  their  own 
land,  and  therefore  every  one  doth  put  in  their  cattle  to  feed  promiscue 
in  the  open  field.'  Often  the  right  is  of  a  more  extensive  character  than 
is  here  described,  and  is  in  practice  enjoyed,  though  as  will  appear  here- 
after often  without  legal  justification,  by  the  neighbouring  inhabitants. 

•'  The  name  is  also  sometimes  applied  to  arable  land  over  which  rights 
of  common  exist,  such  as  are  mentioned  in  the  last  note. 


14  All nio. Saxon  Law.  [chap.  i. 

§  3.  Relation  of  Lord  and  Alan. 

Such  were  the  fundamental  notions  of  proprietary  rights  over 
land  which  prevailed  amongst  our  Teutonic  forefathers.  But 
there  is  another  element  in  Teutonic  custom,  at  first  wholly 
unconnected  with  the  holding  or  ownership  of  land,  which  came 
in  process  of  time  to  form  an  important  element  in  the  complex 
structure  called  the  law  of  real  property.  This  is  the  relation 
of  lord  and  man,  which  gradually  developed  into  the  relation 
of  lord  and  tenants  The  primitive  form  of  this  relation  is 
found  in  the  description  of  the  mutual  connexion  of  princeps 
and  comes  described  by  Tacitus^.  It  was  in  its  earliest  form 
the  association  of  a  chief  and  his  chosen  baud  of  followers  in 
warfare.  This  was  characterised  by  the  most  absolute  devotion 
of  the  comes  to  the  princeps.     The  chief  was  regarded  as  the 


*  See  Stubbs,  Const.  Hist.  i.  p.  153,  note. 

2  Tacitus,  De  Situ,  INIoribus,  et  Populis  Germaniae,  cc.  13,  14 :  'Insignis 
nobilitas,  aut  magna  patrum  merita,  principis  dignationem  etiam  adoles- 
centulis  adsignant :   ceteris  robustioribuB  a«  jam  pridein  probatis  adgre- 
gantur :     nee   rubor   inter  comites  adspici.      Gradus    quinetiam    et   ipse 
comitatus    babet,  judicio    ejus,  quern    sectantur :    magnaque   et   comitum 
aemulatio,   quibus   primus    apud   principem   suum   locus ;    et   principum, 
cui  plurimi  et  acerrimi  comites.     Haec  dignitas,  hae  vires,  magao  semper 
electorum  juvenum  globo  circumdari,  in  pace  decus,  in  bello  praesidium. 
Nee  solum  in   sua  gente  cuique,  sed   apud  finitimas  quoque  civitates  id 
nomen,  ea  gloria  est,  si  numero  ac  virtute  comitatus  emineat :  expetuntur 
enim  legationibus,  et  muneribus  ornantur,  et  ipsa  plerumque  fama  bella 
profligant.     Quum  ventum  in  aciem,  turpe  principi,  virtute  vinci ;  turpe 
comitatui,  virtutem  principis  non  adaequare.     Jam  vero  infame  in  omnem 
vitam  ac  probrosum,  superstitem  principi  suo  ex   acie  recessisse.     Ilium 
defendere,  tueri,  sua  quoque  fortia.  facta  gloriae  ejus  adsignare,  praecipuum 
sacramentum  est.     Principes  pro  victoria  pugnant ;  comites  pro  principe. 
Si  civitas  in  qua  orti  sunt,  longa  pace  et  otio  torpeat ;  plerique  nobilium 
adolescentium  petunt  ultro  eas  nationes,  quae  turn  bellum  aliquod  gerunt ; 
quia  et  ingrata  genti  quies,  et  facilius  inter  ancipitia  clarescunt,  mag- 
numque  comitatum  non  nisi  vi  belloque  tueare :    exigunt  enim  principis 
sui   liberalitate    ilium    bellatorem    equum,   illam    cruentam   victricemque 
frameam.     Nam   epulae  et   convictus,   quamquam    incompti,  largi  tamen 
adparatus,   pro   stipendio   cedunt.      Materia    munificentiae   per  bella   et 
raptus.' 


SECT.  I.  §  3-]     Personal  Relation  of  Lord  and  Man.        15 

fountain  of  honour  and  the  giver  of  gifts  to  those  who  were 
bound  by  oath  to  follow  him.  In  our  own  early  records  this 
relation  of  princejps  and  comes  has  developed  into  the  relation 
of  lord  and  man.  It  is  no  longer  confined  to  the  field  of  battle, 
it  has  become  a  tie  of  mutual  service,  responsibility,  and  pro- 
tection in  every  relation  of  life,  and  is  regarded  as  one  of  the 
principal  bases  of  social  order  \  So  far  was  this  idea  carried, 
that  the  fact  of  renliering  even  menial  service  to  a  person  of 
exalted  rank  was  thought  to  reflect  nobility  on  the  person 
rendering  it^.  But  this  relation  is  not  at  first  necessarily 
connected  with  the  holding  of  land ;  the  relation  is  that  of 
princej)s  and  comes,  of  king  and  his  thanes,  of  lord  and  man. 
not  of  lord  and  tenant. 

When  however  a  territory  was  occupied  by  a  conquering 
tribe,  without  doubt  the  most  fertile  parts  of  the  land  must 
have  been  appropriated  by  the  chief  and  his  followers.  The 
principal  share  would  fall  to  the  chief,  who,  as  the  head  of  the 
community,  would  regulate  the  management  and  distribution 
of  the  whole.  The  lands  occupied  by  the  comites  would  not 
probably  in  any  other  sense  have  been  considered  to  have  been 
granted  to  them  by  the  chief.  No  relation  or  duty,  as  between 
the  chief  and  the  comites,  would  arise  from  the  fact  of  the  grant 
of  the  lands.  That  relation  already  existed  independently 
of  the  grant  of  the  lands.  No  doubt  the  comites  occupying  the 
lands  would  be  in  a  sense  bound  to  military  service,  not  in  the 


^  'And  we  have  ordaineil.  respecting  those  lordless  men  of  whom  no 
law  can  be  got,  that  the  kiiulred  be  commanded  that  they  domicile  him 
to  folk-right,  and  find  him  a  lord  in  the  folk-mote ;  and  if  they  then  will 
not  or  cannot  produce  him  at  the  term,  then  be  he  thenceforth  a  "  flyma," 
[runaway],  and  let  him  stay  him  for  a  thief  who  can  come  at  him  ;  and 
whoever  after  that  shall  harbour  him,  let  him  pay  according  to  his  "  wer," 
or  by  it  clear  himself.' — Laws  of  j3i]thelstan,  Stubl)s,  Select  Charters,  p.  64 ; 
and  see  Freeman's  Norman  Conquest,  vol.  i.  p.  96. 

"^  See  the  chapter  in  Kemble's  Saxons  in  England,  vol.  i,  on  '  the  Noble 
by  Service.'  The  thane  grows  out  of  the  comes ;  he  is  a  servant,  but  a 
servant  ennobled  by  the  dignity  of  him  whose  attendant  he  is.  Freeman, 
i.  p.  92. 


1 6  Anglo-8axon  Law.  [chap.  i. 

first  instance  as  landholders,  but  by  reason  of  their  personal 
relation  to  the  chief.  When  the  idea  of  a  nation  as  an 
organised  political  community  has  been  developed,  it  is  probable 
that  the  obligation  of  military  service  for  the  defence  of  the 
community  attaches  in  every  case  to  the  holding  of  land  by 
the  freeman.  This  seems  to  have  been  universal  from  the  time 
of  the  earliest  charters.  There  was  no  escape  for  the  land- 
holder from  the  trinoda  necessitas.  This,*  it  must  be  observed, 
is  different  from  tenure  by  knight  service,  though  it  must  be 
taken  into  account  amongst  the  causes  which  led  to  the  growth 
of  military  tenures. 

Thus  from  the  eai'liest  times  there  would  exist  in  the  various 
bodies  of  original  settlers  a  ^jrmcejps  or  lord,  supposed  to  be 
sprung  from  a  lineage  higher  than  that  of  common  humanity. 
In  many  cases  there  arose  in  this  way  a  sort  of  hereditary 
chieftainship.  Amongst  his  other  functions,  the  chief,  prince,  or 
king  is  supreme  over  the  land.  He  has  himself  the  most 
extensive  rights  of  enjoyment  over  it,  and  he  has  the  power 
of  granting  similar  rights  to  others.  Thus  he  passes  into  the 
lord  of  the  district — of  the  land  itself,  as  well  as  of  the  men 
who  dwell  thereon.  "When  his  district  or  petty  kingdom 
becomes  merged  in  and  subject  to  a  larger  kingdom,  he  in  his 
turn  becomes  subordinate  to  the  superior  prince.  There  is 
not  yet  any  formal  surrender  and  regrant  of  the  land;  but 
the  supremacy  of  the  superior  prince  is  acknowledged,  as  in 
other  matters,  so  in  making  gi'ants  of  portions  of  the  district 
of  which  the  inferior  is  lord.  There  is  as  yet  no  distinct  con- 
ception of  the  relation  of  superior  lord,  mesne  lord,  and  tenant ; 
but  there  is  a  relation  which  by  an  easy  transition  may  assume 
those  feudal  characteristics. 

The  development  of  these  lords  of  districts  no  doubt  was 
brought  about  in  other  Avays  than  that  above  indicated.  The 
grants  of  enormous  tracts  of  land  by  the  king  and  his  witan 
must  frequently  have  comprised  whole  village  communities, 
and  had  the  effect  of  imposing  a  lord  or  superior  landowner 
upon  the  district,  whose  yoke  would  in  all  probability  be  harder 


SECT.  I.  §  3.]  Territorial  Lorchhij)s.  17 

than  the  more  distant  suzerainty  of  the  king  ^  And  no  doubt 
in  communities  consisting  of  free  and  equal  cultivators  of  the 
soil,  sometimes  in  troublous  times  a  chief  arose  who  became 
their  leader  in  war  and  their  first  magistrate  in  peace  ^.  This 
appearance  of  a  chief  in  a  small  community  may  also  have  been 
aided  by  the  tendency  which  has  been  obsei-ved  in  these  small 
communities,  for  particular  families  to  possess  or  acquire  an 
ascendancy  I  The  chief  was  often  a  member  of  a  family 
enjoying  a  species  of  hereditary  preeminence.  These  chiefs 
doubtless  became  in  process  of  time  lords  of  districts  of  land. 

Thus  there  can  be  no  question  that  towards  the  end  of  the 
Anglo-Saxon  period  it  became  common  for  large  districts  of 
land  to  be  held  by  lords  or  great  men,  king's  thanes  or  others  ; 
and,  as  has  been  seen,  extensive  tracts  were  also  held  by  religious 
corporations. 

Of  such  districts  a  large  portion  was  retained  by  the  lord 
in  his  own  hands.  This  portion  was  called  terra  dominica, 
terrae  dominicales,  or  domain  lands.  On  this  portion  stood  the 
principal  house,  the  mansio  or  manor-house  as  it  was  called  in 
later  times.  The  lands  were  cultivated  for  the  benefit  of  the 
lord  by  serfs,  or  perhaps,  in  some  cases,  by  freemen  bound  to 
render  agricultural  services  *.     On  the  remainder  of  the  occupied 

1  When  the  land  granted  was  already  occupied  by  possessors  having  a 
durable  interest  which  the  customary  law  would  protect,  the  grant  must 
have  been  of  the  nature  of  a  grant  of  a  lordship  or  of  seignorial  rights. 
Compare  the  grant  of  Leofric  (Earl  of  Mercia,  eleventh  century),  Cod. 
Dipl.  dccccxxxix,  where  half  the  town  of  Coventry  and  many  villages  are 
granted  to  the  Church  of  the  Blessed  Virgin  at  Coventry,  '  cum  saca  et 
Bocna  et  teloneo  et  themo  et  omnibus  consuetudinibus  sicut  eas  a  rege 
Eadwardo  melius  unquam  tenui.'  The  right  of  jurisdiction,  and  the 
profits  arising  from  the  district  courts,  were  the  most  important  of  these 
seignorial  rights.  See  Stubbs'  Const.  Hist.  i.  pp.  183-187,  and  below, 
p.  20,  note. 

2  See  Sir  H.  Maine's  account  (Village  Communities,  p.  143)  of  the  pro- 
bable mode  in  which  the  manor  grew  out  of  the  mark. 

3  See  Freeman's  Norman  Conquest,  i.  p.  88;  Sir  H.  Maine's  Village 
Communities,  p.  145. 

*  See  Hale  Hale's  Introduction  to  the  Domesday  of  St.  Paul's,  p.  xxx 
(Publications  of  Camden  Society).     Aud  see  the  document  entitled  Recti- 

Q 


i8  Anglo-Saxon  Law.  [chap,  i, 

land  the  rights  of  the  lord  were  rather  in  the  nature  of  a 
seignory  or  lordship.  He  had  no  right  to  the  actual  possession 
or  enjoyment  of  the  land  itself,  but  only  to  the  rents  or  dues  to 
be  paid  or  rendered  by  the  persons  in  occupation  of  the  soil. 
His  rights  over  the  waste  or  unoccupied  land  have  already  been 
spoken  of. 

The  principal  of  these  territorial  magnates  was  the  king. 
Besides  his  position  as  supreme  lord  of  all  the  land  in  the 
kingdom,  he  was  also  the  largest  landowner.  He  filled  the 
former  position  as  chief  of  the  nation  :  the  latter  as  having 
acquired  by  the  ordinary  modes  of  acquisition  a  larger  area  of 
land  than  any  other  great  man  in  the  kingdom.  It  cannot 
however  be  supposed  that  these  two  capacities  were  kept 
entirely  distinct.  Traces  can  be  discovered  of  a  gi'owing  ten- 
dency before  the  Conquest  for  the  folcland  to  become  merged 
in  the  terra  regis.  After  the  Conquest  the  merger  is  complete, 
the  folcland  is  heard  of  no  more,  and  the  king  becomes  the 
supreme  landowner,  the  lord  paramount  of  all  the  land,  whose 
rights  differ  from  those  of  any  other  lord  not  so  much  in  kind 
as  in  degree  ^. 


"O" 


tudines  Singularum  Personarum  in  the  Ancient  Laws  and  Institutes, 
p.  432,  In  the  Domesday  of  St.  Paul's  we  find  tl^  praedial  services  were 
due  from  three  classes  of  persons,  called  villani,  cotarii,  bordarii.  In  the 
Eectitudines  (placed  by  Thorpe  next  after  the  laws  of  Cnut)  we  find  prae- 
dial services  due  from  villani,  cotsetle,  geburi.  The  villani  are  serfs  attached 
to  the  hides  or  land  on  which  they  live  ;  the  cotarii  and  bordarii  are  iden- 
tical with  the  cotsetle  and  geburi,  and  are  cottagers  with  stiU  smaller  hold- 
ings than  the  villani,  and  bound  to  lighter  services.  See  Nasse,  pp.  36-42. 
Opposed  to  these  classes  bound  to  praedial  ser\^ce  we  find  in  the  Eecti- 
tudines the  '  Taini  lex,'  '  Thane  law,'  thus  described  : — '  Taini  lex  est  ut 
sit  dignus  rectituchne  testamenti  sui  et  ut  ita  faciat  pro  terra  sua  scilicet 
expeditionem,  buhrbotam  et  brigbotam.'  The  whole  passage  is  interesting, 
as  an  indication  of  a  stage  in  the  history  of  tenure  by  knight-service, 
tenure  in  socage,  and  copyholds.     (See  below.) 

1  See  Freeman's  Norman  Conquest,  i.  p.  102  ;  ii.  pp.  52,  55  ;  iv.  p.  24 ; 
Allen  on  the  Eoyal  Prerogative,  p.  150;  Stubbs'  Const.  Hist.  i.  p.  143. 


SECT.  I.  §4.]         Summary  of  Earl?/  Law.  19 

§  4.  Summary  of  Anglo-Saxon  Customary  Law. 

Thus  in  the  period  preceding  the  Norman  Conquest  the 
growth  of  various  conceptions  can  be  traced  in  the  customary  ^ 
law  of  land  out  of  which  the  remarkable  structure  called 
the  Law  of  Real  Property  Avas  ultimately  developed.  There 
are  present  the  elements  of  the  idea  of  tenure,  or  of  the  rights 
and  duties  which  constitute  the  relation  of  a  landholder  to  his 
lord.  This  is  found  in  the  relation  of  lord  and  man  which  in 
some  cases  has  developed  into  the  relation  of  lord  and  tenant. 
But  the  creation  of  a  tenure  is  not  as  yet  regarded  as  the  uni- 
versal consequence  of  a  grant  of  land.  It  is  however  probable 
that  even  the  free  alodial  landowners  in  many  cases  became 
the  vassals  or  tenants  of  the  king  or  great  lord,  by  '  commend- 
ing '  themselves  to  him,  acknowledging  him  as  their  lord,  and 
receiving  in  return  his  protection^.  One  evidence  of  the 
growth  of  the  conception  of  tenure  is  to  be  found  in  the 
changed  sense  of  the  word  '  alodium '  as  used  in  Domesday. 
It  is  sometimes  there  applied  to  hereditary  and  alienable  land, 
which  nevertheless  is  held  of  a  superior  lord^.  Other  ex- 
pressions in  Domesday  seem  to  indicate  a  transitional  period 
between  absolute  independence  and  feudal  tenancy.  Thus 
it  is  common  to  say  of  the  holder  of  land  cum  ea  ire  potuit 
quo  voluit ;  that  is,  that  he  was  at  liberty  to  commend  him- 
self or  become  the  man,  vassal,  or  tenant  of  any  lord  he  pleased  *. 

*  On  the  difference  between  customary  law  and  positive  law  properly  so 
called,  see  below,  Chap.  II.  Though  there  is  apparently  a  large  mass  of 
written  Anglo-Saxon  law,  it  will  be  found  to  throw  but  little  light  on  the 
law  of  land.  Where  it  deals  with  this  subject,  it  refers  to  and  presupposes 
the  existence  of  customary  law.  See  on  the  character  of  this  written  law, 
Stubbs,  Select  Charters,  p.  59. 

*  '  Liberi  homines  commendati '  is  a  very  common  expression  in  Domes- 
day.    See  vSir  H.  EUis,  General  Introduction  to  Domesday,  i.  p.  64. 

^  Thus  it  is  common  in  Domesday  Book  to  meet  vdth  such  expressions 
as  'ipse  tenuit  in  alodio  de  Rege  Edwardo.'  See  Allen  on  the  Royal 
Prerogative,  p.  196  ;  Freeman's  Norman  Conquest,  iv.  p.  38,  notes ;  Sir 
H.  Ellis,  General  Introduction  to  Domesday,  i.  p.  55. 

*  HoUam's  Middle  Ages,  ii.  p.  86  (eighth  edition). 

C  2 


20  Anglo-Saxon  Law.  [chap.  i. 

On  the  whole,  the  evidence  seems  to  point  to  the  conclusion 
that  the  early  relation  of  in'inceps  and  comes  had  tended  more 
and  more  to  be  connected  with  the  holding  of  land ;  that  the 
king  was  regarded  by  his  thanes  as  the  lord  from  whom  they 
might  look  for  grants  of  land,  sometimes  in  the  shape  of  large 
districts  booked  to  them,  to  be  held  alodially;  sometimes  in 
the  shape  of  beneficial  possessory  rights  over  the  public  land, 
for  which  dues  and  services  would  be  payable,  and  which  could 
not  be  permanently  alienated  without  the  king's  consent  \ 
Whether  the  land  was  free  or  burdened,  every  free  landowner 
was  subject  to  the  burden  of  military  service;  which  was 
deemed  not  an  incident  of  tenure,  but  a  duty  to  the  State. 

The  relation  subsisting  between  the  king  and  his  thanes  waa 
rei)roduced  on  a  smaller  scale  in  the  case  of  the  great  lords  who 
had  acquired  or  inherited  districts  of  land.  The  dwellers  within 
the  district  were  tending  to  become  their  tenants.  This  was  the 
case  especially  with  the  classes  of  serfs  and  freemen  bound  to 
agricultural  service.  Tenure  by  knight-service  is  unknown  till 
after  the  Norman  Conquest ;  tenure  by  suit  of  court,  rent,  or 
agricultural  services — what  in  later  times  would  be  called  tenure 
in  socage  or  in  villenage — certainly  in  substance  existed  before. 
Doubtless  too  the  lord  before  the  Conquest  had  in  many  cases 
acquired  what  in  later  times  was  the  great  characteristic  of  a 
manor.  The  free  assembly  of  the  village  had  become  the  lord's 
court  ^.     And  just  as  the  unoccupied  land  of  the  community  had 

1  See  especially  the  instances  given  by  Kemble  of  the  consent  of  the 
king  being  required  for  testamentary  alienation  ;  above,  p.  7.  Sometimes 
we  find  instances  of  a  person  simply  being  allowed,  in  the  first  instance, 
beneficial  or  possessory  rights  over  the  land,  which  afterwards  becomes 
his  independent  alodial  property.  Thus  land  held,  in  the  first  instance,  as 
laenland,  is  found  in  some  cases  to  be  converted  into  absolute  property,  the 
lord,  to  use  the  language  of  the  later  law,  releasing  his  reversion  to  the 
tenant.  '  Now  there  are  three  hides  of  this  land  which  Archbishop  Oswald 
booketh  to  Eadric  his  thane,  even  as  he  before  held  them  as  laenland.' 
^^Kemble,  Saxons,  p.  313. 

2  After  the  beginning  of  the  reign  of  Edward  the  Confessor  grants  of 
districts  are  very  commonly  expressed  to  be  made  cum  saca,  'jurisdiction 
in  matters  of  dispute,"  et  soca,  'the  franchise  of  holding  a  court.'     The 


SECT.  I.  §  4.]         Simmary  of  Early  Law.  21 

come  to  be  regarded,  first  as  tlie  king's  folcland,  and  secondly 
as  the  terra  regis,  so  had  the  waste,  unoccupied,  or  common  land 
of  the  village  comnumity  come  to  be  regarded  as  the  lord's 
waste,  over  which  the  dwellers  within  the  district  exercised 
certain  customary  rights. 

Besides  the  elements  of  the  conception  of  tenure,  Anglo-Saxon 
customary  law  contributed  certain  other  principles  of  permanent 
influence,  modified  more  or  less  by  the  changes  consequent  upon 
the  Conquest,  to  the  conception  of  the  rights  of  private  property 
in  land. 

Of  these  the  principal  are  (i)  the  conception  of  the  duration  of 
an  interest  in  lands.  The  Anglo-Saxons  conceived  the  idea  of  an 
estate  of  inheritance  in  lands,  an  interest  which  would  descend 
to  successors  in  infinitum.  They  also  had  the  idea  of  inhei'i- 
tances  limited  to  particular  descendants,  as  for  instance  to  the 
males  of  the  family.  Such  peculiar  characteristics  could  be 
impressed  upon  the  interest  in  lands  by  the  form  of  the  original 
gift.  Estates  for  life  were  also  known ;  these  seem  to  have  been 
especially  common  in  the  conventiones  or  leases  under  which 
lands  were  held  hyfirmarii  upon  ecclesiastical  property  \ 

(2)  Another  important  point  is  the  characteristic  which  pre- 
vailed before  the  Conquest  of  entire  freedom  of  alienation  both 
inter  vivos  and  by  will,  at  all  events  of  bocland,  except  so  far  as 
this  right  is  limited  by  the  claims  of  the  family.  The  history 
of  the  richt  of  alienation  inter  vivos  will  be  traced  later :  the 
right  of  alienation  by  will  ceases  altogether  with  the  introduc- 
tion of  Norman  jm-isprudence^  except  in  some  particular  localities 

only  court  in  which  this  jurisdiction  could  be  exercised  was  the  village 
or  district  assembly,  wliich  in  all  probability  gradually  assumed  the 
character  of  an  assembly  of  the  tenants  of  the  manor,  or  Court  Baron. 
See  Stubbs,  Const.  Hist.  i.  p.  184. 

^  See  many  specimens  of  these  leases  for  lives  in  the  Domesday  of  St. 
Paul's,  p.  123,  etc.  It  was  very  common  for  ecclesiastical  bodies  to  lease 
their  territory  to  firniarii,  the  lessee  standing  in  the  place  and  ha\'ing  all 
the  rights  of  the  lord,  rendering  to  the  lessors  fixed  rents  in  kind  or  money. 
Leases  of  particular  portions  of  land  within  the  district  were  also  (probably) 
common. 


2a  Effects  of  the  Conqiiest.  [chap.  i. 

and  boroughs,  and  is  not  revived  till  a  new  class  of  proprietary 
rights  arises,  which  supersedes,  in  great  measure,  the  old  law. 

(3)  Upon  the  death  of  the  landowner,  his  land,  as  a  rule, 
descended  to  all  the  sons  equally,  as  contrasted  with  the  rule  of 
primogeniture,  which  was  of  Norman  introduction.  The  history 
of  the  law  on  this  point  will  be  noticed  in  reference  to  a  passage 
in  Glanvill. 


'      •  SECTION  II. 

Effects  of  the  Norman  Conquest. 

Such  are  the  main  outlines  of  the  customary  law  of  land 
prevailing  among  the  Anglo-Saxons.  It  was  of  home-growth ; 
there  was  but  little  admixture  of  ideas  imported  from  the  Con- 
tinent. No  doubt,  in  its  framework  and  language,  an  Anglo- 
Saxon  charter  resembled  those  in  use  elsewhere  ;  but  this  arises 
not  so  much  from  the  identity  of  legal  conceptions  as  from 
the  fact  that  these  instruments  were  everywhere  drawn  up 
by  the  clergy,  who  shared  in  the  common  training,  ideas,  and 
phraseology  of  the  Universal  Church  ^. 

"We  have  seen  that  the  early  Teutonic  customs  had  by  the 
time  of  the  Conquest  developed  into  what  may  be  called,  for 
want  of  a  better  name,  a  kind  of  feudalism.  There  were,  at  all 
events,  two  of  the  principal  elements  of  feudalism — the  relation 
of  king  and  thane,  of  lord  and  man,  and  the  development  of 
great  territorial  lordships,  of  which  by  far  the  most  numerous 
were  those  enjoyed  by  the  king.  We  cannot  doubt  that  these 
two  elements  of  feudalism  were  becoming  blended  ;  that  the 
thane  was  gradually  passing  into  the  tenant  in  capite  ^,  the  man 
of  the  lord  of  a  district  into  his  tenant.  But  these  names, 
together  with  the  whole  apparatus  of  modern  legal  terminology, 
had  not  yet  arisen. 

^  See  Sir  F.  Palgrave's  Kise  and  Progress  of  the  EugHsli  Common- 
wealth, ii.  p.  cciv. 

^  A  tenant-in-chief,  that  is,  a  tenant  liolding  immediately  of  the  king. 


SECT.  II.]  Contitiental  Feudalism.  23 

Another  type  of  feudalism  had  by  the  time  of  the  Conquest 
been  developed  on  the  Continent.  On  the  Continent  the 
primitive  Teutonic  customs  had  been  affected,  not  only,  as  in 
England,  by  the  natural  consequences  of  conquest  and  settle- 
ment of  fresh  lands,  but  by  the  fact  that  the  inhabitants  of 
the  lands  thus  conquered  were  living  in  a  state  of  culture 
and  civilisation  far  superior  to  that  of  their  conquerors.  Hence 
it  was  that  the  barbarian  tribes  which  oveiTan  Italy,  Gaul, 
and  Spain  adopted  the  religion  and  laws  of  the  conquered 
nations,  modified  to  some  extent  by  old  barbarian  usages.  For 
the  present  purpose  it  is  only  important  to  notice  the  effect  of 
this  medley  of  barbarian  usage  and  Roman  law  ^  upon  the 
attributes  of  property  in  land. 

A  practice  had  arisen  in  the  Empire  of  quartering  soldiers 
upon  frontier  lands  upon  condition  of  their  rendering  service 
when  called  upon  in  the  defence  of  the  frontiers.  Probably  the 
conception  of  the  tenure  under  which  such  soldiers  held  their 
lands  was  borrowed  to  some  extent  from  the  attributes  of  the 
interest  in  lands  called  emphyteusis.  Though  the  emphyteuta 
(the  person  having  the  right)  had  an  indefinite  power  of 
enjoyment  and  alienation,  emphyteusis  was  nevertheless  regarded 
as  2.  jus  in  re  aliena,  as  a  right  distinct  in  kind  from  the  domi- 
nium or  property  in  the  land,  which  was  considered  to  be  re- 
tained by  the  domimis;  notwithstanding  the  extensive  character 
of  the  rights  of  the  emphyteuta.  The  latter  rights  were  enjoyed 
upon  conditions  created  at  their  origin,  the  payment  of  a  rent 
ipensio,  cation)  being  the  most  usual.  If  the  condition  was 
broken  the  full  beneficial  right  reverted  to  the  dominus,  and 
the  emphyteusis  ceased. 

The  barbarian  settlers  upon  Roman  territory  seem  to  have 
been  brought  under  the  influence  of  these  legal  ideas,  and  a 
curious  blending  of  them  with  the  old  Teutonic  customs  becomes 
apparent.     Whether  we  regard  the  Teutonic  conquests  on  the 

^  See  Maine's  Ancient  Law,  p.  364,  and  for  an  elaborate  account  of  the 
causes  which  led  to  feudal  tenure,  Palgrave's  Rise  and  Progress  of  the 
English  Commonwealth,  i.  p.  495,  etc.,  and  ii.  p.  cciv. 


34  Ejfeds  of  the  Conquest.  [chap,  i. 

Continent,  according  to  tlie  older  theory,  to  have  been  accom- 
plished by  principes  each  with  their  separate  comitatus,  or, 
accoi'ding  to  the  view  of  the  latest  authorities,  to  have  been 
'  the  work  of  the  nations  moving  in  entire  order  V  as  subjects 
of  a  king,  the  appropriation  and  re-allotment  of  conquered 
lands  by  the  chief  or  king  becomes  the  prominent  feature  of 
the  new  societies.  Amongst  the  gifts  which  the  chief  or  king 
makes  to  his  followers  or  subjects,  gifts  of  land  become  the 
most  important.  They  receive  the  special  name  of  beneficia. 
As  in  the  case  of  emphyteusis  the  subject  of  the  gift  is 
not  regarded  as  the  absolute  property  of  the  beneficiary. 
His  enjoyment  is  conditional  on  his  performing  certain  ser- 
vices ;  and  these  probably  derive  their  character  partly  from 
the  Teutonic  notion  of  his  relation  to  his  princ^)s,  partly  from 
the  Eoman  obligation  of  defensive  service.  The  oath  by  which 
the  comes  became  bound  to  the  princeps  passes  into  the  act  of 
doing  homage  to  the  lord  and  sweai'ing  fealty  to  him  in  return 
for  the  grant  of  lands.  The  land  is  held  upon  condition  of 
rendering  military'  service.  If  the  condition  is  broken  the  land 
is  forfeited  to  the  donor.  Thus  arises  the  conception  that  from 
the  gift  new  rights  and  duties  flow,  a  tenure  or  relation  of  lord 
and  tenant  is  created  thereby. 

These  beneficia  in  process  of  time  receive  the  name  offeuda  ^ 

1  See  summary  of  the  authorities  on  this  subject  in  Stubbs,  Const.  Hist, 
i.  p.  251,  note  2. 

^  The  etymology  of  the  word  feudum  has  given  rise  to  much  controversy. 
Blackstone  (ii.  p.  45)  thinks  that  it  comes  from  two  words  in  '  the  Northern 
languages, /ee,  signifying  conditional  stipend  or  reward,  and  odh.  proprietas.' 
Sir  F.Palgrave  believes  it  to  be  simplya  colloquial  abbreviation  of  emphyteusis 
(Ease  of  English  Commonwealth,  ii.  p.  ccvii) ;  Diez  however  (Etymologisches 
Worterbuch  der  Romanischen  Sprachen),  sub  voce  Fio,  shows  that  feudum 
is  a  Latin  recoinage  of  a  word  sprung  from  an  old  Teutonic  root — Lom- 
bardian^w,  old  high  German /eAit  {rieli),  Gothic  failiu,  signifying  cattle,  or, 
generally,  property ;  cattle  being  probably  amongst  the  earliest  subjects  of 
property  (see  suh  voce  FBOH  in  Bosworth's  Anglo-Saxon  Dictionary,  and 
compare  pecits,  pecimia).  'S.ence  feudum,  the  d  being  added  for  euphony, 
(compare  feuum  in  Domesday).  Hence  fief,  fee,  feoffment,  etc. ;  and  see 
Littre,  Dictionnaire  de  la  Langue  Franfaise,  sub  voce  fief.     Sir  H.  Maine 


SECT,  n.]  Continental  Feudalism.  25 

which  in  its  earliest  acceptation  means  land  which  has  been 
gi^antecl  to  be  held  of  the  donor,  as  opjiosed  to  alodial  land. 

It  was  a  further  step  in  the  direction  of  feudalism  to  turn 
alodial  holders  of  land  into  holders  of  these  henejicia  or  feuda. 
The  lot  of  the  conquered  is  always  hard,  and  doubtless  the  alodial 
holder  of  land  was  glad  to  retain  the  enjoyment  of  a  portion  of 
his  property  on  such  terms  as  the  conqueror  chose  to  impose. 
The  usual  conditions  were  that  the  old  free  proprietor  should 
become  the  '  man '  of  the  conqueror,  and  should  be  bound  to 
military  service.  Moreover,  in  those  troubled  times  it  often 
became  a  necessity  for  the  poor  alodial  holder  to  enter  into  the 
train  of  retainers  of  a  powerful  lord  in  order  to  obtain  protection : 
hence  the  practice  of  '  commendation,'  of  becoming  the  man  or 
vassal  of  the  lord,  receiving  in  i-eturn  the  protection  without 
which  the  preservation  of  life  and  property  was  impossible.  A 
necessary  element  in  this  process  was  the  surrendering  of  the 
alodial  lands,  to  be  received  back  under  the  condition  of  ren- 
dering military  or  other  sei-vice. 

Such  is  in  outline  the  probable  account  of  the  origin  of  the 
great  characteristic  of  feudalism — military  tenure  of  lands ; 
known  in  our  law  by  the  name  of  tenure  in  knight-service,  or 
in  chivalry. 

It  was  created  by  the  tie  of  homage,  the  solemn  act  by 
which  the  tenant  acknowledged  his  lord  as  him  of  whom  he 
held  his  laud,  and  to  whom  he  was  bound  to  render  service ; 
and  from  which,  on  the  other  hand,  arose  the  duty  on  the  part 
of  the  lord  of  protecting  his  tenant.  The  lord  himself  (where 
the  lord  was  other  than  the  highest)  was  in  tlie  same  way  the 
vassal  or  tenant  of  some  other  over-lord.  But  between  the 
supeinor  or  chief  lord  and  the  tenant  who  held  his  lauds  of  the 
vassal  of  the  superior  lord  there  was  no  immediate  relation  of 
service  and  protection,  or  otherwise. 

in  his  lectures  recently  delivered  in  Oxford  on  the  Brehon  law  pointed  out 
that  amongst  the  Irish  tribes  a  relation  analogous  to  that  of  lord  and  vassal 
was  created  or  imposed  by  the  superior  comjielling  the  inferior  to  accept 
cattle. 


26  Effects  of  the  Conquest.  [chap.  i. 

The  system  of  military  tenure  of  lands  prevailed  in  Normandy 
before  the  Conquest  of  England,  and  it  seems  probable  that  the 
customary  law  of  that  country  had  elaborated  with  some  minute- 
ness and  technicality  the  various  rights  and  duties  of  lord  and 
tenant  by  military  serviced  It  was  his  tenants  bound  to  render 
to  him  military  service  whom  William  summoned  when  the  news 
of  the  death  of  Edward  was  brought  to  him.  The  fact  that  by 
the  tenns  of  their  tenure  they  were  not  bound  to  service  beyond 
the  sea  caused  him  some  difficulty^.  The  rapid  introduction  in 
the  century  succeeding  the  Conquest  of  a  strict  definition  of  the 
mutual  duties  of  lord  and  tenant,  and  of  a  highly  technical  legal 
phraseology,  leads  to  the  conclusion  that  these  must  have  been 
to  some  extent  imported  at  the  Conquest ;  and  that  amongst  the 
Normans  must  have  been  found,  what  the  Anglo-Saxons  cer- 
tainly did  not  possess,  a  class,  if  not  of  trained  lawyers,  at  all 
events  of  men  habituated  to  abstract  reflection  on  the  prevailing 
customs,  able  to  express  them  in  legal  phraseology,  and  to  draw 
conclusions  from  the  established  principles  of  customary  law. 

From  the  mixture  of  Anglo-Saxon  customary  law  with  the 
Norman,  the  blending  process  beginning  under  the  influence 
of  the  strong  rule  of  the  Conqueror,  and  forced  on  with  rapid 
strides  by  the  vast  territorial  confiscations  which  followed  the 
Conquest,  arose  the  Common  Law  relating  to  land.  It  must 
not  be  supposed  that  a  new  system  of  rules  of  law  was  con- 
sciously introduced  and  forced  upon  the  conquered  race  ^ ;  the 
new  structure  was  owing  to  the  political  and  social  changes 
wrought  by  the  great  Conquest,  to  the  process  of  settlement 
and  reorganisation  under  a  powerful  ruler,  who  would  brook  no 
imperium  in  imperio,  and  to  the  convergence  of  two  distinct 
streams  of  customary  law. 

*  See  Stubbs,  Const.  Hist.  i.  p.  249. 

*  See  Palgrave's  Normandy  and  England,  vol.  iii.  p.  300. 

"'  Blackstone  and  otber  writers  regard  the  '  feudal  .system '  as  a  set  of 
rules  consciously  devised  to  serve  certain  purposes,  and  voluntarily  or 
compulsorily  adopted  by  the  various  communities  in  which  they  prevailed. 
See  Blackstone,  book  ii.  ch.  4,  '  Of  the  Feodal  System.'  But  laws,  espe- 
cially in  early  times,  '  are  not  made,  but  grow.' 


SECT.  II.  §  I.]        The  King  and  the  Land.  27 

The  effect  of  the  Norman  Conquest  upon  the  land  law  of 
England  is  best  dealt  with  by  considering  the  change  wrought, 
first,  in  the  relation  of  the  king  to  all  the  land  in  the  country  ; 
secondly,  in  the  development  of  the  idea  of  tenure,  or  the  rights 
and  duties  constituting  the  relation  of  lord  and  tenant ;  and, 
thirdly,  in  the  relation  of  lords  of  districts  to  their  men  who 
dwelt  within  the  district. 

§  I.  Relation  of  the  King  to  tlie  Land. 

By  the  conquest  or  acquisition  of  England  William  succeeded 
to  all  the  rights  of  the  Anglo-Saxon  kings.  The  rights  over  the 
land  which  they  had  became  his.  The  great  possessions  held 
by  them  in  their  private  capacity  devolved  upon  William,  and 
no  distinction  any  longer  existed  between  the  king's  ownership 
of  land  in  his  private  capacity  and  his  suzerainty  over  the 
folcland  as  chief  of  the  nation '.  All  alike  became  terra  regis. 
Besides  the  laud  to  which  he  thus  became  entitled  as  the  legiti- 
mate successor  of  the  Anglo-Saxon  kings,  all  the  land  held  by 
those  who  had  resisted  him  was,  by  the  customary  law  of  both 
England  and  Normandy,  forfeited  to  the  king. 

The  enonnous  amount  of  land  thus  forfeited,  the  vast  gi'ants 
made  to  William's  Norman  followers,  the  practice  of  making 
grants  of  land  to  the  same  person  in  different  parts  of  the 
counti-y  so  as  to  prevent  the  creation  of  a  too  powerful  territorial 
aristocracy,  are  matters  dwelt  on  in  all  histories  of  the  period. 
Besides  the  actual  dispossession,  a  vast  quantity  of  the  land  of 
the  kingdom  was  surrendered  and  regranted ;  in  other  words, 
a  sort  of  process  of  commendation  was  gone  through,  (he  free 
alodial  holder  became  the  man,  vassal,  or  tenant  of  the  king  '^. 

That  the  powerful  followers  of  the  Conqueror  to  whom  he 
granted  districts  of  land  should  become  his  tenants,  bound  to 
render  militaiy  service  to  him,  was  in  accordance  with  Norman 

'  See  above,  p.  i8,  note  i. 

^  As  to  the  repurchasing  of  tlie  conquered  land  by  the  English,  see 
Freeman,  vol.  iv.  p.  25  ;  and  Stubbs,  Const.  Hist.  i.  p.  259. 


28  Effects  of  the  Conquest.  [chap.  i. 

customs,  and  also  necessary  for  the  consolidation  of  the  Con- 
queror's power.  There  can  be  no  doubt  thiit  in  every  case 
these  grants  were  made  in  return  for  the  tenant  doing  homage 
to  William  and  binding  himself  to  military  service.  The  free 
landowners  who  received  back  their  lands  as  tenants  of  the  king 
would  also  be  bound  to  service,  military  or  other. 

Thus  the  notion  of  military  tenure,  at  all  events  as  between 
the  king  and  the  great  barons,  rapidly  took  root  after  the  Con- 
quest. But  there  is  another  element  in  the  conception  of  the 
relation  of  the  king  to  the  land  of  the  country  which  must  not 
be  lost  sight  of.  It  has  been  seen  that  before  the  Conquest  the 
whole  land  was  subject  to  the  burden  of  the  trinoda  necessitas  \ 
There  can  be  little  doubt  that  after  the  Conquest  this  burden 
came  to  be  regarded  as  a  service  due  to  the  king  quite  iri'espec- 
tive  of  the  fact  whether  the  landholder  bound  to  render  it  was  the 
king's  tenant  or  not.  This  probably  is  the  explanation  of  the 
famous  oath  taken  by  '  all  landholders '  at  the  council  of  Sarum 
in  1086^.  And  the  form  of  homage  which  was  adopted  after 
the  Conquest  to  create  the  feudal  tie  between  a  mesne  lord  and 
his  tenant  always  contained  a  saving  of  the  allegiance  due  to 
the    king  ^      A  powerful   ruler   like  AVilliam,    who   had    had 

'  '  Si  rex  mittebat  alicubi  exercitum,  de  quinque  hidis  tantum  unus  miles 
ibat  et  ad  ejus  victum  vel  stipendium  de  unaquaque  hida  dabantur  ei  iiii. 
solidi  ad  duos  menses.  Hos  vero  denarios  regi  non  mittebantur  sed  mili- 
tibus  dabantur.  Si  quis  in  expeditionem  summonitus  non  ibat,  totam 
terram  suam  erga  regem  forisfaciebat.  Quod  si  quis  remanendi  habens 
alium  pro  se  mittere  promitteret,  et  tamen  qui  mittendus  erat  remaneret, 
pro  1.  solidis  quietus  erat  doniinus  ejus.' — Domesday,  Customs  of  Berkshire, 
Stubbs'  Select  Charters,  p.  87. 

*  '  Then  came  to  him  his  witan  and  the  landholders  that  were  through- 
out England,  and  they  became  his  men,  and  all  submitted  themselves  to 
him  and  were  his  men,  and  swore  fealty  to  him,  and  that  they  would  defend 
him  against  all  other  men.'  Saxon  Chronicle,  A.D.  1086  ;  Stubbs,  p.  78  ; 
quoted  in  Blackstone,  ii.  p.  49.  Compare  Laws  of  William  I,  cap.  2  : 
'  Statuimus  etiam  ut  omnis  liber  homo  foedere  et  sacramento  affirmet, 
quod  infra  et  extra  Angliam  Willelmo  regi  fideles  esse  volunt,  terras  et 
honorem  illius  omni  fidelitate  cum  eo  sei'vare,  et  ante  eum  contra  inimicos 
defendere.'     (Select  Charters,  p.  80.) 

^  See  the  form  of  homage  given  below,  Chap.  II.  §  2. 


SECT.  II.  §  2.]  Tenure.  29 

abundant  experience  of  the  tendency  of  continental  feudalism 
to  make  the  vassal  a  fox*midable  rival  to  the  king,  was  not  likely 
to  throw  away  the  advantage  of  the  existence  of  a  principle 
forming  so  important  an  aid  to  the  central  authority  as  the 
Anglo-Saxon  trinoda  necessitas.  No  doubt,  in  times  when  the 
central  authority  was  weakened,  the  barons  succeeded  for  a  time, 
especially  during  the  reign  of  Stephen,  in  shaking  off  their  alle- 
giance to  the  crown  and  summoning  their  tenants  to  serve  them 
in  their  private  wars.  In  the  long  run,  however,  the  strong 
and  vigorous  centralisation  effected  by  William,  and  organised 
by  Henry  II,  resulted  in  firmly  establishing  the  principle,  that 
where  the  land  was  held  of  a  mesne  lord  by  military  service, 
pi'opter  jpatriae  tuitionem,  the  service  was  regarded  as  due  not 
to  the  mesne  lord,  but  to  the  king.  This  is  the  distinguishing 
characteristic  between  English  and  Continental  feudalism  ^,  and 
was  fraught  with  consequences  of  the  most  vital  import  to  the 
growth  of  the  English  constitution.  The  only  exception  to  this 
principle  seems  to  have  been  when  the  lord  himself  personally 
attended  the  king.  In  that  case  he  might  summon  his  military 
tenants  to  attend  with  him,  or  exact  a  pecuniary  equivalent  in 
lieu  of  service,  called  scutage  or  escuage  ^. 


§  2.  Development  of  the  idea  of  Tenure. 

A  principal  result  of  the  Norman  Conquest  upon  the  cus- 
tomary law  of  land  seems  to  have  been  the  development  of 
the  idea  of  tenure,  the  more  precise  definition  of  the  mutual 
rights  and  duties  of  lord  and  tenant,  and,  as  a  necessary  conse- 
quence, the  introduction  of  a  technical  phraseology.  This  result 
was  not  brought  about  by  any  positive  enactment.  It  was  due 
to  the  introduction  of  Norman  customs  and  ideas,  and  their 
combination  with  Anglo-Saxon  customs  and  ideas. 

*  Compare  the  Ordonnances  of  St.  Lewis,  ch.  50,  quoted  in  Butler's  uote 
to  Coke  upon  Littleton,  191  a;  and  see  below,  Chap.  III.  §  10. 
2  As  to  scutage,  see  below,  Chap.  III.  §  5. 


3©  Effects  of  the  Conqiiest.  [chap.  i. 

Thus  was  produced  what  is  called  the  feudal  system,  or  the 
feudal  mode  of  holding  lands.  Domesday  bears  abundant  traces 
of  the  growth  of  the  idea  of  tenure,  though  we  still  hear  of  the 
men  {homines)  of  a  lord  ratlier  than  of  his  tenants.  The  land 
is  everywhere  sj^oken  of  as  having  been  held  of  King  Edward 
or  some  other  lord.  The  word  feudum  or  feuum  is  used  to 
designate  the  land  which  is  held  as  a  benefice  and  not  alodi- 
ally^  The  various  modes  in  which  land  was  held  by  different 
classes  of  persons  before  the  Conquest  Avere  now  tending  to 
become  different  species  of  tenure,  and  gradually  acquiring 
definite  technical  names  ^. 

Thus  land  held  by  religious  houses,  which  before  the  Con- 
quest was  always  free  from  all  temporal  service  except  the 
trinoda  necessitas,  is  now  said  to  be  held  by  the  tenure  called 
libera  eleemosyna  (free  alms  or  frankalmoign  ^).  It  is  however 
still  I'egarded  as  free  from  all  temporal  dues,  and  the  religious 
corporation  is  only  bound  to  spiritual  service.  The  services 
due  to  tlie  king,  which  if  rendered  to  one  of  less  exalted  rank 
would  have  been  considered  degrading  to  a  freeman,  were  still 
in  the  time  of  Domesday  rendered  by  the  taini  regis  *,  but 
were  no  doubt  becoming  connected  with  the  holding  of  land, 
and  passing  into  the  exalted  tenure  of  magnum  servitium,  or 
grand  serjeanty  ^.  Hence  it  was  that  lands  held  by  this  tenure 
can  only  be  held  of  the  king.  But  most  impoi'tant  of  all  is 
tenure  per  inilitiam,  in  chivalry  or  by  knight-service.  Here 
again  the  evidence  afforded  by  Domesday  seems  to  show  that 

*  See  above,  p.  24,  and  the  Index  to  Domesday. 

*  Compare  the  following  passages  ! — '  Non  fuit  de  feudo  sed  tantum  fuit 
homo  suus.'  (Kelham's  Domesday  Illustrated,  p.  212.)  'Homo  (effectus 
est)  antecessoris  sed  terram  suam  sibi  non  dedit.'  (lb.  233.)  '  Milites 
habebant  sub  se  quatuor  ita  liberi  ut  ipsi  erant.'    (lb.  272.) 

^  See  ElKs,  General  Inti-oduction  to  Domesday,  i.  p.  258. 

*  Ibid.  p.  45. 

^  This  name  does  not  appear  in  Domesday.  No  doubt  at  that  time  the 
accurate  distinction  between  diflferent  species  of  tenure  had  not  arisen. 
Probably  these  distinctions  were  not  accurately  drawn  till  the  great  im- 
pulse given  to  the  development  of  the  Common  Law  by  the  action  of  the 
tribunals  organised  by  Henry  the  Second. 


SECT.  II.  §  2.]     Incidents  of  Military  Tenure.  31 

this  species  of  tenure  had  not  yet  definitely  taken  its  place  in 
the  legal  classification  of  rights  of  property,  but  was  gradually 
becoming  recognised  ^.  No  doubt  military  tenure  first  pre- 
vailed between  the  king  and  his  immediate  tenants — those  who 
had  actually  received  new  grants  of  land,  or  their  old  lands  re- 
granted  to  them.  By  the  Anglo-Saxon  law  the  public  duty 
was  imposed  on  such  tenants  of  rendering  military  service 
for  the  defence  of  the  country.  Continental  feudal  notions 
would  transform  this  public  duty  into  the  obligation  of  render- 
ing military  service  to  the  king  as  lord  of  the  tenants'  land. 
But  his  position  as  king  as  well  as  lord  was  never  wholly  lost 
sight  of.  If  a  mesne  lord,  that  is  a  lord  who  was  himself  a 
tenant  of  the  king  or  of  some  superior  lord,  made  a  grant  of 
land  to  be  held  of  himself  by  military  services,  though  the  land 
was  of  course  held  of  the  mesne  lord,  the  military  service,  as 
has  been  seen,  was  regarded  as  due  not  to  the  immediate  lord 
but  to  the  king  ^. 

Besides  the  duty  of  military  service  which  constituted  the 
essential  characteristic  of  tenure  in  chivalry,  various  incidental 
rights  and  duties  came  to  be  attached  to  the  relation  of  lord 
and  tenant  per  militiam,  some  of  which  became  the  most  im- 
portant attributes  of  that  relation.  The  first  in  order  of  time 
was  that  of  relief,  or  the  dues  which  the  heir  of  the  tenant 
was  bound  to  render  to  his  lord  on  being  admitted  tenant  and 
rendering  homage.  This  was  confounded  with  the  custom  of 
renderino;  heriots  on  the  death  of  the  man  or  vassal  which 
prevailed  before  the  Conquest  ^.     The  origin  however  of  the 

^  We  find  however  in  two  passages  the  expression  (i.  lo  b,  and  i.  32) 
'  servitium  unius  militis '  as  a  new  tenure,  which  became  the  regular  tech^ 
nical  term  for  the  military  service  due  for  a  knight's  fee.  '  T.  R.  E.  (tempore 
regis  Edwardi)  valebat  XL  sol  et  post  L  sol  modo  Ilii  lib.  et  seiwitium  unius 
militis.'  (Ellis,  General  Introduction,  i.  262.)  Tenants  holding  of  the  king 
are  sometimes  spoken  of  as  '  barones  regis.'  According  to  Sir  H.  Ellis, 
i.  p.  58,  '  miles '  has  not  acquired  the  technical  sense  of  *  knight.' 

*  See  Bracton,  fol.  35,  given  in  Chap.  III.  §  10. 

*  See  the  Laws  of  Cnut  (71,  72)  as  to  the  amount  of  heriots  due  upon  the 
death  of  an  eorl,  a  king's  thegn,  etc. ;  Stubbs,  Select  Charters,  p.  73.  From 


33  Effects  of  the  Conquest,  [chap.  r. 

practice  of  rendering  heriots  and  of  paying  reliefs  was  different. 
Tlie  heriot  probably  originated  in  the  practice  of  returning  to 
the  prince'ps  the  horse  or  the  armour  with  which  he  had  fur- 
nished the  comes  ^  :  it  was  of  purely  Teutonic  origin  '^.  The 
relief  originated  with  the  practice  of  regarding  lands  as  bene- 
fices to  be  held  of  the  grantor.  The  admission  of  the  heir  as 
tenant  in  his  ancestor's  place  was  by  the  feudal  theory  a  favour 
to  be  bought  with  a  price,  but  which  could  not,  if  the  proper 
steps  were  taken,  be  withheld  by  the  lord.  It  was  thus  entirely 
a  result  of  the  conception  of  tenure. 

The  aid  for  marrying  the  eldest  daughter  of  the  lord  is 
recorded  as  having  been  taken  for  the  daughter  of  Henry  I 
on  her  marriage  with  the  Emperor.  It  appears  however  to 
have  been  levied  as  a  tax  on  all  land,  not  exclusively  from 
the  tenants  in  chivaliy  ^.  These  auxilia  or  aids  were  apparently 
not  at  first  strictly  defined,  limits  were  probably  imposed  on 
them  by  customs  which  were  observed  or  exceeded  according 
to  the  rapacity  or  power  of  the  lord.  Finally,  they  were  re- 
stricted to  a  reasonable  aid  for  ransoming  the  lord  if  he  were 
taken  captive,  for  making  the  eldest  son  a  knight,  and  for 
mai'rying  once  the  eldest  daughter  *. 

this  law  was  borrowed  the  provision  of  WiUiam  I  as  to  reliefs : — '  De 
relief  a  cunte  ki  al  rei  afert — viii  cheuals  enfrenez  e  enscelez  (les  iiii) 
e  iiii  haubercs  e  iiii  haumes  e  iiii  escuz  e  iiii  lances  e  iiii  espees.  Les  autres 
ii  chaceurs  et  ii  palefreis  a  freins  et  a  cheuestres.'  (Thorpe's  Ancient  Laws 
and  Listitutes,  p.  474.)  Similar  provisions  follow  as  to  the  relief  to  be 
paid  by  barons,  vavassors,  and  viUeins.  It  is  probably  from  the  existence 
of  this  law  of  Cnut's  that  the  idea  has  arisen  that  heriots  are  exclusively  of 
Danish  origin. 
•  ^  See  the  passage  in  Tacitus  given  above,  p.  14:  '  esigunt  enim  prin- 
cipis  sui  liberalitate  iUum  bellatorem  equum,  iUam  cruentam  victricemque 
fraraeam.' 

^  See  Kembla's  Saxons  in  England,  i.  p.  178. 

*  '  Anno  igitur  sequenti  data  est  filia  regis  imperatori,  ut  breviter  dicam, 
sicut  decuit ;  Rex  itaque  cepit  de  unaquaque  hida  Angliae  tres  solidos.' — 
Henr.  Huntingd.,  Hist.  lib.  vii ;  Stubbs,  Select  Charters,  p.  95. 

*  See  Magna  Carta  (John),  cc.  12  and  15;  Blackstone,  ii.  p.  64;  and 
the  Statute  '  Confirmatio  Cartarum,'  25  Edw.  I. 


SECT.  11.  §  2.]  Manors.  33 

The  incidents  of  the  greatest  importance  are  those  of  ward- 
ship and  marriage.  These  became  rights  of  the  greatest 
value  to  the  lord,  and  most  burdensome  to  the  tenant.  They 
are  frequently  spoken  of  as  if  they  constituted  the  essence  of 
tenure.  Pure  feudalism  had  but  a  short  life  in  England. 
These  incidents  of  tenure,  the  only  justification  of  which  was 
to  be  found  in  their  aiding  towards  the  completeness  of  the 
military  tie  between  lord  and  tenant,  soon  lost  every  rational 
basis.  In  the  time  of  Henry  I,  the  lord  simply  has  the  right 
to  prevent  the  daughter  of  his  tenant  being  given  in  marriage 
to  his  enemy  ^  It  further  appears  from  the  charter  of  Henry  I, 
that  the  widow  or  some  other  near  relation  was  to  be  allowed 
by  their  lord  to  be  the  guardian  of  the  children  ^.  It  will  be 
seen  that  by  the  time  of  Glanvill  the  lord  had  acquired  the 
right  of  assuming  the  guardianship  of  the  person  of  the 
minor  and  of  his  lands,  restoring  them  to  him  on  his  coming 
of  age  without  accounting  for  the  mesne  profits.  Further, 
the  heir  on  coming  of  age  was  obliged  to  purchase  the  delivery 
of  the  lands  (called  livery  or  ousterlemain)  by  payment  of  a 
fine  of  half  a  year's  profits  of  the  land.  The  absolute  right  of 
the  lord  to  the  disposal  of  the  daughter  of  his  tenant  in 
marriage  is  recognised  by  Glanvill  in  the  strongest  terms,  but 
it  was  not  till  the  reign  of  Heniy  III  that,  by  an  iniquitous 

'  '  Si  quis  baronum  vel  aliorum  hominum  meorum  filiam  suam  nuptum 
tradere  voluerit  sive  sororem  sive  neptiin  sive  cognatam,  mecum  inde 
loquatur  ;  sed  neque  ego  aliquid  de  suo  pro  hac  licentia  accipiam,  neque 
defendam  ei  quin  earn  det,  escepto  si  earn  vellet  jungere  inimico  meo. 
Et  si  niortno  barone  sive  alio  homine  meo  filia  haeres  remacserit,  illam 
dabo  consilio  baronum  meormn  cum  terra  sua.  Et  si  mortuo  viro  uxor 
ejus  remanserit  et  sine  liberis  fuerit,  dotem  suam  et  maritationem  habebit, 
et  earn  non  dabo  marito  nisi  secundum  velle  suum.' — Charter  of  Liberties  of. 
Henry  I,  c.  3;  Stubbs,  Select  Charters,  p.  97;  and  see  below,  Chap.  II. 

§  3  (2).  (.3). 

^  '  Si  vero  uxor  cum  liberis  remanserit,  dotem  quidem  et  maritationem 
habebit,  dum  corpus  suum  legitime  servaverit,  et  earn  non  dabo  nisi 
secundum  velle  suum.  Et  terrae  et  Uberorum  custos  erit  sive  uxor  sive 
alius  propinquorum  qui  justius  esse  debeat.  Et  praecipio  quod  barones 
mei  similiter  se  contineant  erga  filios  et  filias  vel  uxores  hominum 
suorum.' — Charter  of  Henry  I,  c.  4 ;  Stubbs,  ib. 

D 


34  Effects  of  the  Conqttest.  [chap.  i. 

construction  of  a  clause  in  Magna  Carta,  the  lords  extended 
their  claim  to  the  marriage  of  the  sons  of  the  tenant  as  well. 
The  practice  had  by  this  time  lost  any  shadow  of  justification 
on  feudal  grounds  ;  originating  simply  with  the  grasping  and 
illegal  avarice  of  the  great  lords,  it  passed  into  a  firmly  estab- 
lished right  of  property  ^ 

One  of  the  most  valuable  of  the  lord's  rights  was  that  of 
escheat,  or  the  right  of  having  the  lands  of  the  tenant  on  failure 
of  his  heirs.  This  right  arises  directly  from  the  relation  of 
lord  and  tenant.  The  tenant  is  conceived  as  having  only  an 
estate  in  the  lands— an  interest  which  though  it  may  be  capable 
of  descending  to  heirs,  in  infinitum,  was  something  short  of 
absolute  ownership.  The  lord  has  a  possibility  of  the  lands 
reverting  to  him,  which  the  tenant  cannot  defeat. 

Such  are  the  main  characteristics  of  the  relation  of  lord  and 
tenant  in  chivalry.  It  does  not  appear  that  in  early  times 
there  was  any  difference,  except  in  the  leading  feature  of 
military  service,  between  the  rights  of  the  king  and  of  any 
mesne  lord.  The  law  as  to  aids,  reliefs,  maiTiage,  and  w^ard- 
ship  was  the  same  in  both  cases  ^. 

§  3.  Relation  of  Lords  of  Districts,  or  Manors,  to  their  Tenants. 

It  has  been  seen  that  before  the  Conquest  large  districts  of 
land  were  held  by  persons  or  corporations,  the  dwellers  upon 
which,  holding  beneficially  plots  of  land,  usually  of  small  size, 
wei-e  bound  to  render  sei-vices,  either  in  money,  kind,  or  labour, 
to  the  lord  or  supreme  landowner  of  the  district.  The  probable 
relation  of  these  districts  to  the  old  village  community  has 
already  been   alluded   to.      It  is  probable  that  the   Conquest 

1  The  following  entry  occurs  in  Domesday  in  reference  to  some  lands 
belonging  to  the  bishop  of  Worcester  :  '  Hanc  terram  tenuit  Sirof  de 
episcopo  tempore  Regis  Edwardi,  quo  mortuo  dedit  episcopus  filiam  ejus 
cum  hac  terra  cuidam  suo  militi,  qui  et  matrem  pasceret,  et  episcopo  inde 
serviret.'     i.  fol.  173;  and  see  below,  Chap.  II.  §  3  (4);  Chap.  III.  §  3. 

2  It  appears  that  in  later  times  special  rights  were  claimed  by  the  king, 
which  were  not  claimable  by  mesne  lords.  Of  these  the  principal  were 
primer  seisins  and  fines  on  alienation.     Blackstone,  ii.  66,  71. 


SECT.  II.  §  3.]  Manors.  '3^^^ 

wrought  but  little  immediate  change  in  the  relation  of  such 
persons  to  their  lord.  A  Norman  lord  might  be  substituted 
for  a  Saxon,  but  the  dues  and  services  would  substantially 
continue  the  same.  We  now  find  that  these  districts  receive 
the  name  maneria,  or  manors  ^.  In  Domesday  the  words 
mansio,  villa,  manerium  ^  are  synonymous.  After  the  Conquest 
England  is  parcelled  out  into  manors  varying  greatly  in  size ; 
having  as  a  rule  fixed  boundaries,  often  coinciding,  as  is  still 
the  case  at  the  present  day,  with  the  boundaries  of  the  parish. 
In  some  cases  manors  were  diminished  or  added  to,  and  new 
manors  created  ^  Probably  hojvever  there  was  no  great  addition 
after  the  Conquest  to  the  number  of  manors  *. 

It  has  already  been  seen  that,  although  the  word  'manor' 
is  of  Norman  introduction,  substantially  the  relation  of  lord 
of  a  manor  and  his  tenants  existed  before  the  Conquest.  It  is 
probable  however  that  the  idea  of  the  legal  relation  between 
the  lord  and  the  smaller  holders  of  land  within  the  manor 
received  more  exact  definition  at  the  hands  of  Norman  lawyers 

'  The  earliest  appearance  of  the  word  is  in  the  reign  of  Edward  the 
Confessor,  who  was  fond  of  introducing  Norman  language  and  customs. 
See  Ellis,  General  Introduction  to  Domesday,  p.  225. 

2  Fleta  (temp.  Edward  I),  lib.  vi.  cap.  51,  carefully  distinguishes  be- 
tween mansio,  villa,  and  manerium.  Mansio  consists  of  a  single  house 
or  habitation  {nuUi  vidua).  Villa  implies  the  existence  of  several  habi- 
tations near  each  other.  Each  of  these  includes  the  tenements  apper- 
taining to  or  usually  held  with  them.  A  manerium  may  consist  of 
several  villae,  or  of  a  single  villa.  But  a  villa  cannot  be  more  extensive 
than  a  manor,  though  it  may  comprise  many  parochiae.  The  word  '  villa  ' 
was  always  used  in  writs  to  express  the  district  where  the  lands  in 
question  in  the  action  lay.  See  specimen  below,  Chap.  II.  §  i ;  Glanvill, 
lib.  i.  c.  6. 

*  See  Sir  H.  Ellis,  General  Introduction,  p.  234,  etc. 

*  This  is  probably  to  be  accounted  for  by  the  history  of  manors.  A  manor 
court  owed  its  existence  to  long  established  custom,  the  creation  of  a  new 
court  was  probably  regarded  as  beyond  the  power  even  of  the  crown.  See 
Coke's  Copyholder  xxxi :  '  Hence  it  is  that  the  king  himself  cannot  create 
a  perfect  manor  at  the  present  day,  for  such  things  as  receive  their  per- 
fection by  the  continuance  of  time  come  not  within  the  compass  of  the 
king's  prerogative.'  As  to  the  effect  of  the  statute  Quia  Emptores 
(18  Edw.  I),  see  below.  Chap.  IV. 

D  2 


36  Effects  of  the  Conquest.  [chap.  i. 

and  justices  \  The  lord  is  regarded  in  his  relation  to  those 
below  him  as  lord  of  the  soil,  in  relation  to  the  king  or 
superior  lord  he  is  regarded  as  tenant.  He  stands  in  the  same 
relation  to  the  land  of  the  district  as  the  king  fills  in  relation 
to  the  land  of  the  whole  country.  Prima  facie  all  rights  over 
the  land  within  the  district  which  are  not  claimed  by  any 
individual  are  regarded  as  vested  in  the  lord.  The  free  holders 
of  land  become  his  tenants  ;  he  is  not  only  lord  of  his  men, 
but  lord  of  the  land,  he  is  entitled  to  escheat  on  failure  of  the 
tenants'  heirs,  the  rights  of  pasturage  on  the  unoccupied  lands 
enjoyed  by  the  inhabitants  of  the  district  come  to  be  regarded 
as  jura  in  alieno  solo — rights  exercised  over  the  land  the 
ownership  of  which  is  vested  in  the  lord.  It  must  be  remem- 
bered that  the  king  is  not  only  the  supreme  but  the  largest 
landoAvner  in  the  country.  He  is  lord  of  many  manors  in 
various  districts.  What  is  said  therefore  of  the  relation  of 
tenants  to  their  lords  must  be  understood  to  apply  also  to  the 
king  when  he  is  lord  of  the  manor. 

The  holders  of  land  within  the  manor  may,  for  the  purposes 
of  legal  history,  be  conveniently  divided  into  the  following 
classes.  First,  the  tenants  in  knight  service  or  in  chivalry, 
whose  tenure  must,  if  the  views  above  stated  be  correct,  have 
originated  since  the  Conquest  by  grant,  or  commendation  in- 
volvintr  a  resrant.  The  characteristics  of  this  tenure  have 
already  been  sufficiently  detailed.  Secondly,  there  are  the 
freemen,  bound  to  render  service,  other  than  military  service, 
in  money,  produce,  attendance  at  the  lord's  court,  or  labour ; 
or  rather,  as  they  would  be  called  after  the  Conquest,  free 
tenants  holding  by  such  services.  In  Domesday  we  find  these 
tenants  spoken  of  as  sochemanni,  socmanni,  or  liberi  socmanni  ^. 

1  It  is  significant  that  the  word  'barones'  in  Domesday  means  not 
so  much  great  territorial  lords,  as  the  justices  of  the  king.  The  title  ia 
perpetuated  in  the  Barons  of  the  Exchequer.  See  Ellis's  General 
Introduction,  i.  p.  44. 

^  The  derivation  of  the  word  has  given  rise  to  much  controversy.  The 
generally  accepted  derivation  is  from  '  soc,'  an  old  word  meaning  a  plough- 
share, the  socage  tenant  being  bound  to  agricultural  service.     But  this 


SECT.  II.  §  3.]  Socage  Tenants.  37 

The  services  to  which  they  were  bound  seem  to  have  been 
usually  fixed  or  certain,  and  not  capable  of  being  exacted 
arbitrarily  by  the  lord,  such  as  the  rendering  of  a  certain 
amount  of  agricultural  service,  or  paying  a  fixed  rent  in  money 
or  produce.  Sometimes  a  free  tenant  would  only  be  bound 
by  the  oath  of  fealty.  It  seems  that  in  fact  the  line  between 
the  services  rendered  by  free  tenants  and  by  the  non-free  was 
in  many  cases  not  clearly  marked'.  They  were  doubtless 
regulated  by  local  customs,  and  in  some  cases  free  men  would 
be  bound  to  render  base  services.  The  important  thing  was 
the  status  of  the  person  rendering  the  services,  not  the  service 
rendered.  In  process  of  time  the  nature  of  the  services 
rendered,  especially  the  characteristic  of  fixity  or  certainty, 
came  to  be  regarded  as  the  mark  of  a  distinct  species  of  free- 
hold tenure  called  free  socage. 

Socage  tenure  is  thus  described  by  Littleton,  who  wrote  in 
the  reign  of  Edward  IV  ^ : — '  Tenure  in  socage  is  where  the 
tenant  holdeth  of  his  lord  the  tenancy  by  certain  service  for 
all   manner    of   services,  so   that  the  service   be   not   knight's 

was  far  from  being  universally  the  case,  probably  in  early  times  it  was 
the  exception  rather  than  the  rule.  There  can  be  little  question  that  the 
word  is  connected  with  soca,  socn,  'jurisdiction,'  from  the  Anglo-Saxon 
secan,  'to  seek.'  The  free  landowners  had  probably  by  the  time  of  the 
Conquest  been  brought  nearly  universally  into  the  condition  of  persons 
owing  suit  or  attendance  at  the  court  of  some  great  man.  Thus  the  soche- 
maiini  are  probably  the  free  suitors  or  attendants  {sccta,  aequor)  of  the 
lord's  court,  who  came  in  process  of  time  to  be  regarded  as  tenants  holding 
in  socar/e,  by  the  tenure  of  such  suit  or  service.  These  tenants  were 
usually  brought  under  the  obligation  of  rendering  some  fixed  rent  or 
service,  and  hence  the  later  conception  of  the  essential  characteristic  of 
socage  tenure.     See  Stubbs,  Const.  Hist.  i.  p.  273. 

*  No  doubt  there  was  often  a  tendency  to  depress  the  free  socmannus 
to  a  condition  of  serfdom  ;  or  at  all  events  to  require  from  him  services 
unworthy  of  a  freeman.  Hence  in  later  times  a  distinction  arose  between 
free  socage  and  villein  socage  ;  the  latter  being  the  tenure  where  the 
services,  though  certain,  are  such  as  are  unworthy  of  a  free  man.  A 
tenant  holding  by  such  services  would  in  the  time  of  Bracton  (see  below. 
Chap.  III.  §  12)  not  lose  his  status  as  a  free  man,  but  would  hold  by  base 
tenure. 

*  Littleton's  Tenures,  sect.  117.     Sir  E.  Coke's  translation. 


85412 


38  Effects  of  the  Conquest.  [chap.  i. 

service.  As  where  a  man  holdeth  his  laud  of  his  lord  by 
fealty  and  certain  rent  for  all  manner  of  services ;  or  else 
where  a  man  holdeth  his  land  by  homage,  fealty  and  certain 
rent  for  all  manner  of  services ;  or  where  a  man  holdeth  his 
land  by  homage  and  fealty  for  all  manner  of  services ;  for 
homage  by  itself  maketh  not  knight's  service.' 

There  can  be  little  doubt  that  tenure  in  socage  is  the  suc- 
cessor of  the  alodial  proprietorship  of  early  times.  The 
changes  in  the  direction  of  feudalism  wrought  by  the  Conquest 
affected  the  small  free  proprietors  far  less  than  the  lords  of 
great  districts.  Such  of  them  as  had  not  already  become 
'  men '  of  some  lord  no  doubt  speedily  entered  into  the  condition 
of  tenants  ;  but  they  retained  to  a  great  extent,  and  in  some 
localities  almost  entirely,  their  ancient  customs. 

The  chief  characteristics  of  socage  tenure  were,  (i)  on  the 
death  of  tenant  in  socage  the  land,  if  '  antiquitus  divisumj' 
descends  to  all  the  sons.  This  was  the  case  in  Glanvill's  time  ^ 
but  under  the  influence  of  Norman  lawyers  the  rule  of  pri- 
mogeniture had  become  genei'al  in  the  next  century,  except  in 
tlie  case  of  the  Kentish  tenure  of  gavelkind^,  and  in  other 
localities  where  special  customs  retained  their  hold. 

(2)  The  socage  tenant  is  free  from  the  obligation  to  military 
service  by  reason  of  tenure,  nor  is  he  always  bound  to  render 
homage  to  his  lord.     The  oath  of  fealty  is  universal,  and  some- 

^  See  below,  Chap.  II.  §  5. 

^  Before  the  Conquest,  gafolcunil  or  gavelkind  lands  meant  simply  'rent- 
paying'  lands.  Kemble,  Introd.  to  Cod.  Dipl.  i.  Ixi.  Gavelkind  retained 
the  characteristics  of  Anglo-Saxon  law  in  a  more  perfect  form  than  any 
other  species  of  property  in  land.  See  Blackstone,  ii.  p.  84.  Gavelkind 
lands  (i)  descended  to  all  the  sons  equally,  (2)  were  usually  devisable  by 
will,  (3)  did  not  escheat  in  case  of  attainder  and  execution  for  felony, 
(4)  could  be  aliened  by  the  tenant  at  the  age  of  fifteen.  The  first  of  these 
characteristics  still  distinguishes  gavelkind  lands  from  other  freeholds. 
How  it  was  that  these  customs  survived  is  a  question  of  great  difficulty; 
possibly  the  very  fact  that  the  hand  of  the  Conqueror  fell  so  heavily  and 
at  so  early  a  date  on  the  great  men  of  the  county  operated  to  preserve 
the  old  customs  amongst  the  poorer  freeholders,  whose  insignificance  was 
their  best  protection.     (See  Freeman,  vol.  iv.  p.  34.) 


SECT.  II.  §  3.]       Classes  of  Free  Tenants.  39 

times  constitutes  his  sole  service.  Whatever  additional  service 
may  be  due  from  him  must  be  fixed  and  certain  :  the  most  usual 
was  a  fixed  payment  of  rent. 

(3)  Some  of  the  '  incidents '  of  tenure  by  knight-service  had 
their  counterpart  in  tenure  in  socage.  The  socage  tenant  was 
liable  to  aids  and  relief.  The  latter  usually  took  the  form  of 
double  rent  for  the  first  year  after  the  tenant's  death  \  Tenant 
in  socage  was  however  free  from  the  oppressive  incidents  of 
feudal  wardship  and  marriage ;  the  guardian  in  socage  was  the 
next  of  kin  who  could  not  inherit,  and  was  accountable  at  the 
termination  of  the  wai'dship  for  the  profits  of  the  lands  ^. 

An  important  class  of  socage  tenants  were  those  who  held 
lands  of  lords  by  this  tenure  in  towns.  By  the  time  of  Glan- 
vill  this  class  of  tenants  had  obtained  the  distinctive  name  of 
bursase  tenants  I  Besides  the  above-mentioned  characteristics 
of  socage  tenure  these  burgage  tenants  retained  in  many  cases 
local  customs,  especially  as  to  the  descent  of  lands,  and  as  to 
devising  them  by  will.  One  of  the  most  remarkable  of  these 
is  styled  borough  English,  which  is  thus  described  by  Littleton  : 
*  Some  boroughs  have  such  a  custom  that  if  a  man  have  issue 
many  sons  and  dieth,  the  youngest  son  shall  inherit  all  the 
tenements  which  were  his  father's  within  the  same  borough  as 
heir  unto  his  father  by  force  of  the  custom  the  which  is 
called  borough  English*.'  By  the  statute  12  Car.  II,  c.  24, 
tenures  in  chivalry,  with  all  their  peculiar  incidents,  were 
abolished  and  turned  into  '  free  and  common  socage.' 

When  land  was  held  of  the  king  not  by  military  service,  but 
under  the  obligation  to  render  some  small  thing  '  belonging  to 
war,'  as,  for  instance,  to  '  yield  to  him  yearly  a  bow,  or  a  sword, 
or  a  dagger,  or  a  knife,  or  a  pair  of  gilt  spurs,  or  an  ai-row  or 
divers  arrows,'  this  was  called  tenure  by  petit  serjeanty  ^. 

»  See  the  Statute  28  E.  I,  st.at-  I- 

^  According  to  Littleton,  s.  118,  'Every  tenure  which  is  not  tenure  in 
chivalry  is  a  tenure  in  socage.'  Bracton,  on  the  other  hand,  distinguishes 
socage  tenure  from  tenure  by  uncertain  but  non-military  services.  See 
lib.  ii.  cap.  16  ;  below,  Chap.  III.  §  10. 

*  See  Glanvill,  lib.  xii.  cap.  3 ;  below,  Chap.  II.  §  i. 

*  Littleton,  sec.  165.  *  Littleton,  sec.  159. 


40  Effects  of  the  Conquest.  [chap.  i. 

Tenants  of  land  holding  by  any  one  of  the  above-mentioned 
tenm-es — libera  eleemosyna  or  frankalmoign,  grand  serjeanty, 
knight-service,  socage,  burgage,  and  petit  serjeanty — were  re- 
garded as  free  holders  having  an  estate  or  interest  in  lands 
worthy  of  a  freeman,  and  involving  no  service  derogatory  to 
the  status  of  freedom.  Some  time  before  the  reign  of  Henry  II, 
but  apparently  not  so  early  as  Domesday*,  the  expression 
Kberum  tenementum  was  introduced  to  designate  land  held 
by  a  freeman  by  a  free  tenure.  Thus  freehold  tenure  is  the 
sum  of  the  rights  and  duties  which  constitute  the  relation  of 
a  free  tenant  to  his  lord.  The  mode  of  granting  or  conveying 
liberum  tenementum  was  by  the  process  called  a  feoffment  {feof- 
fari,  feqffamentum).  The  gi-antor  is  called  the  feoffor,  the  grantee 
the  feoffee.  Whether  or  not  any  formal  mode  of  giving  posses- 
sion of  the  land  granted  by  the  delivery  of  a  clod  or  some  other 
similar  act  thereupon,  had  been  common  among  the  Anglo- 
Saxons,  is  doubtful ;  but  by  the  time  of  Henry  II  we  find  the 
two  essential  elements  of  a  conveyance  of  a  freehold  interest  in 
lands  were  (i)  formal  delivery  of  possession  (technically  called 
livery  of  seisin^);  (2)  words  accompanying,  indicating  the  nature 
and  extent  of  the  grantee's  interest  and  the  services  to  be  ren- 
dered for  it  ^. 

Besides  the  lands  of  the  manor  held  by  free  or  freehold 
tenants,  the  lord  retained  in  his  own  hands  the  domain — terrae 
dominicales — portions  of  which  were  sometimes  let  to  farmers, 
and  portions  cultivated  by  persons  bound  to  render  agricultural 
sei'vices  for  the  benefit  of  the  lord  *.    The  Domesday  of  St.  Paul's 

'  It  is  characteristic  of  the  history  of  the  growth  of  tenure  that  in 
Domesday  (if  the  index  is  coiTcct)  we  hear  of  different  classes  of  tenants, 
but  not  of  different  species  of  tenure  ;  of  llheri  homines,  but  not  of  liberum 
tenementum;  of  milites,  but  not  of  tenure  per  milHiam  ;  oi  socmanni,  but 
not  of  socagium  ;  of  villani,  but  not  of  villenagiiim. 

''■  The  proper  meaning  of  the  word  '  seisin '  is  possession  as  of  freehold  ; 
.  e.  the  possession  which  a  freeholder  has. 

'  See  the  specimen  of  a  charter  of  feoffinent  of  the  time  of  Henry  II 
given  below. 

*  If  the  lord  retained  no  lands  in  his  own  hands,  but  all  the  lands  within 
the  manor  were  held  by  free  tenants,  he  was  said  to  have  a  seignory,  or  a 
seignory  in  gross. 


SECT.  II.  §  3.]  Villeins.  41 

leaves  little  doubt  that  there  were  frequently,  especially  upon 
ecclesiastical  lands,  farmers  holding  land  under  conventions 
or  covenants,  and  rendering  for  it  rent  in  kind  or  money. 
These  would  probably  diflfer  from  the  tenants  in  socage,  for  they 
would  not  be  bound  to  the  lord  by  homage  or  fealty ;  they 
would  simply  hold  under  the  covenant  or  lease.  Specimens  of 
these  leases  are  given  in  the  Domesday  of  St.  Paul's  ;  they  are 
usually  for  the  life  of  the  tenant.  The  convention  was  merely 
binding  as  betv/een  the  tenant  and  the  lord,  it  created  no 
estate  as  between  the  tenant  and  third  persons.  In  later  times 
a  lease  of  land  for  life  becomes  a  freehold  interest  held  by  socage 
or  other  tenure  ;  a  lease  for  years  becomes  a  new  species  of 
rights  over  land,  called  leasehold  interests  or  chattels  real. 

Of  the  non-free  inhabitants  three  principal  classes  are  men- 
tioned in  Domesday — the  villani,  the  servi,  and  the  class  called 
variously  cotarii,  cotsetlae,  hordarii.  It  was  by  the  forced  service 
of  these  three  classes  that  the  domains  of  the  lord,  that  is,  the 
land  not  held  of  him  by  freemen  rendering  free  services,  or  by 
farmers,  was  cultivated.  The  most  important  of  these  are  the 
villani^.  They  were  adscrijptae  glebae,  tied  to  the  land ;  they  could 
not  remove  from  one  manor  to  another.  They  seem  to  have  held 
plots  of  land  of  considerable  extent,  and  the  very  fact  of  their 
not  being  removable,  of  son  succeeding  father  in  the  occupation 
of  his  plot,  and  in  the  obligation  to  render  services,  no  doubt 
gave  rise  to  vai'ious  customs,  such  as  allowing  the  villein's  eldest 
or  youngest  son,  or  all  his  sons  in  equal  shares,  to  succeed  to 
the  father's  beneficial  interests  (usually  on  making  some  pay- 
ment to  the  lord),  recognising  estates  of  inheritance,  for  life,  or 
years,  allowing  the  villein  to  feed  his  cattle  on  the  waste,  and 
the  like.     These  customs  virtually  gave  the  villein  rights  and 

'  See  the  title  of  the  Ely  Domesday  (Stubbs,  Select  Charters,  p.  83),  where 
it  is  provided  that  the  inquiry  should  be  based  on  the  oaths  of  (amongst 
others)  six  villani  from  every  villa.  The  villeins  on  the  manors  in  the 
king's  hands  at  the  time  of  the  Survey  appear  to  have  usually  enjoyed  or 
acquired  some  peculiar  privileges.  In  later  times  the  copyhold  tenants 
on  these  manors  were  called  tenants  in  ancient  demesne.  See  Blackstone, 
ii.  p.  99. 


42  Effects  of  the  Conquest.  [chap.  i. 

duties  against  his  lord,  and,  as  will  be  seen,  grew  into  local 
laws.  If  the  villein  could  not  depart  from  the  land,  no  more 
could  the  lord  remove  him  so  long  as  he  rendered  the  service 
due  to  the  lord  \  That  these  villeins  were  a  large  and  im- 
portant class  Domesday  everywhere  bears  witness.  There  would 
be  little  distinction  between  the  lowest  class  of  freemen  and  the 
highest  class  of  villeins  :  the  one  would  gradually  pass  into  the 
other.     Freemen  sometimes  held  lands'  by  villein  services. 

The  servi  were  mere  slaves,  who  were  sold  and  transferred 
from  one  lord  to  another  without  being  attached  to  any  land. 
In  later  legal  lang-uage  they  are  styled  villeins  in  gross,  as  op- 
posed to  villeins  attached  to  the  land,  who  are  called  villeins 
regardant. 

The  cotarii,  cotsetlae,  or  hordarii,  were  cottagers  holding  small 
plots  of  land.  This  class  were  also  bound  to  render  compidsory 
services,  and  were  no  doubt  before  long  confounded  with  the 
villani.  This  relation  of  the  villeins  or  non-free  inhabitants  to 
the  land  gradually  passes  into  an  interest  recognised  by  custom 
under  the  name  of  villenagium,  and  finally  into  a  tenure  protected 
by  law  under  the  name  of  copyhold  or  customary  tenure  ^. 

Such  were  the  various  phases  of  the  relation  of  lord  and 
tenant  which  took  root  in  the  interval  between  the  Conquest 
and  the  reign  of  Henry  II.  There  remains  however  one,  and 
that  the  principal,  characteristic  of  the  manor  to  be  noticed. 
This  is  the  assembly  or  court  of  the  manor,  called  curia  domini, 
or  court  baron.  The  functions  of  this  court  were  partly 
administrative,  partly  judicial.     The   business  relating  to   the 

'  '  Cil  qui  custiuent  la  terre  ne  deit  lum  trauailer  se  de  leur  droite  cense, 
noun  le  leist  a  seigniirage  de  partir  les  cultiueurs  de  lur  terre  pur  tant 
cum  il  pussent  le  dreit  servise  faire.' 

'Those  who  cultivate  the  land  ought  not  to  be  harassed  beyond  their 
proper  fixed  amount;  nor  is  it  lawful  for  the  lords  to  remove  the  culti- 
vators from  the  laud  so  long  as  they  are  able  to  render  the  due  service.' — 
Laws  of  William  the  Conqueror,  xxix  ;  Thorpe's  Ancient  Laws  and  Insti- 
tutes, p.  480.     See  also  laws  xxx,  xxxi. 

-  As  to  the  condition  of  the  non-free  classes  after  the  Conquest,  see 
Stubbs,  Const.  Hist.  i.  pp.  426-431. 


SECT.  II.  §  3.]  Manor  Courts.  43 

interests  of  the  various  dwellers  within  the  manor  was  here 
transacted,  probably  in  some  manors  the  customs  of  the  manor 
would  from  time  to  time  be  declared  in  this  court,  grants  of 
the  waste  sanctioned,  rights  of  common  regulated.  The  judi- 
cial functions  of  this  court  varied  in  different  manors.  Usually 
it  had  jurisdiction  for  the  cognizance  of  crimes  committed  within 
the  manor  \  and  also  over  civil  suits  arising  within  the  same 
limits,  especially  over  all  matters  relating  to  the  freehold.  This 
jurisdiction  however  was  gi^adually  curtailed  and  overridden  by 
the  judicial  organisation  carried  into  effect  by  Henry  II, 

'A  court  baron,'  says  Sir  Edwai'd  Coke,  'is  the  chief  prop 
and  pillar  of  a  manor,  which  no  sooner  faileth,  but  the  manor 
falleth  to  the  ground  ^.'  The  same  passage  gives  Coke's  view 
of  the  history  of  these  courts  :  '  For  when  the  ancient  kings  of 
this  realm,  who  had  all  the  lands  of  England  in  demesne,  did 
confer  great  quantities  of  land  upon  some  gi'eat  personages, 
with  liberty  to  parcel  the  laud  out  to  other  inferior  tenants, 
reserving  such  duties  and  services  as  they  thought  convenient, 
and  to  keep  courts  where  they  might  redress  misdemeanors 
within  their  precincts,  punish  offences  committed  by  their 
tenants,  and  decide  and  debate  controversies  arising  within 
their  jurisdiction ;  these  courts  were  termed  court  barons.' 

Thus,  according  to  the  older  explanation,  the  manor  court, 
like  the  manor  itself,  resulted  originally  from  a  grant  by  the 
crown.  If  however  the  modern  view  of  the  gi'owth  of  manors 
is  correct,  it  will  follow  that  the  manor  court  is  the  successor  of 
the  ancient  assembly  of  the  village  or  township.  The  constitu- 
tion of  the  court  is  consistent  with  this  view.     The  freemen,  or 

*  As  the  king  became  the  head  of  an  organised  community,  these  local 
jurisdictions  came  to  be  regarded  as  in  some  sense  emanating  from  the 
royal  authority  ;  and  consequently  we  find  that  in  making  grants  of  exten- 
sive districts,  it  was  often  expressed  in  the  Anglo-Saxon  charter  that  these 
rights  of  local  jurisdiction  were  granted  with  the  land.  The  grant  is 
frequently  expressed  to  be  made  '  cum  saca  et  soca,'  '  teloneo  et  thenio,' 
'  infangthef,'  and  '  utfangthef '  For  the  meaning  of  these  terms  see  Laws 
of  Edward  the  Confessor,  xxii;  Stubbs,  Select  Charters,  p.  75. 

''■  Coke's  Copyholder,  xxxi. 


44  Effects  of  the  Conquest.  [chap.  i. 

rather,  as  they  have  now  come  to  be,  the  freehold  tenants  of  the 
manor,  are  the  judges  of  the  court ;  the  lord  or  his  steward  is 
simply  the  president.  Thus  the  continuance  of  a  sufficient 
number  of  freehold  tenants  within  the  manor  is  essential  to  the 
maintenance  of  the  manor  court,  and  so  to  the  continuance  of 
the  manor  itself. 

Besides  the  court  baron  two  other  courts  are  usually  found  in 
manors,  the  court  leet  and  the  customary  court.  The  character- 
istics of  the  leet  seem  to  carry  us  back  to  the  earliest  form  of 
political  organisation  ^.  It  is  the  court  of  the  people  {lead,  leute), 
the  assembly  of  the  whole  community,  and  perhaps  dates  from 
a  time  when  that  community  was  small,  and  could  gather  under 
a  tree,  on  the  side  of  a  hill,  or  upon  a  village  green  ^,  and 
transact  business  affecting  the  interests  of  all  its  members.  The 
principal  matters  dealt  with  in  the  leet  were  the  view  of  frank- 
pledge^, the  presentment  and  punishment  of  offences  and 
nuisances,  the  regulation  of  the  quality  and  prices  of  pro- 
visions, particularly  of  bread  and  ale.  The  leet  is  said  to 
be  derived  out  of  the  Sheriff's  'tourn.'  The  conception  of 
the  lawyers  is  that  the  organisation  of  the  counties  and  hun- 
dreds having  been  arranged  by  king  Alfred,  a  portion  of  the 
jurisdiction  of  the  courts  of  the  county  and  hundred  was  at  some 
time  or  other  granted  by  the  crown  to  the  vai'ious  lords  of 
manors.  There  can  however  be  little  doubt  that  the  nature 
of  these  courts  is  the  same,  varying  mainly  in  belonging  to 
a  larger  or  smaller  political  aggregate.  The  assembly  of  the 
smaller  aggi-egate  after  the  rise  of  manors,  comes  to  be  regai'ded 
as  one  of  the  manor  courts,  carrying  with  it  perquisites  of  con- 
siderable value  to  the  lord,  and  owing,  or  supposed  to  owe,  its 

'  '  The  leet  is  the  most  ancient  court  in  the  land.'  Year  Book  7,  H.  6., 
12.  b. 

^  Eitson  on  Courts  leet,  p.  ix. 

^  The  style  of  the  court  in  later  times  is  the  '  view  of  frank-pledge.'  This 
was  the  production  of  the  pledges  or  persons  responsible  for  each  other 
keeping  the  peace.  Frank-pledge  (A.  S.  fri'S-borh)  ought  properly  to  have 
been  rendered  '  pledges  of  peace.'  The  Normans  however  seem  to  have 
mistaken /riiJ,  'peace,'  for  fri,  'free,'  and  hence  the  erroneous  translation. 


SECT.  II,  §  3. J  Summary.  45 

origin  to  the  grant  of  the  franchise  by  the  king '.  It  has  always 
however  been  regarded  as  the  coui't  of  the  residents  within  the 
district,  not  of  the  tenants  of  the  manor  ^  and  the  matters  of 
which  it  takes  cognisance  are  for  the  most  part  not  connected 
with  tenure. 

The  customary  court  does  not  come  to  be  of  importance  till 
copyhold  or  customary  tenure  has  become  established,  and  the 
notice  of  it  may  therefore  be  deferred '. 

Thus  the  great  feature  of  the  period  extending  from  the  Con- 
quest to  the  beginning  of  the  reign  of  Henry  II  is  the  establish- 
ment of  the  notion  of  tenure  and  the  development  of  the  manorial 
system.  Every  free  tenant  (and  none  other  is  regarded  as  having 
a  legal  interest  in  the  land  at  all)  holds  of  and  in  relation  to  a  lord. 
The  lord  who  is  not  in  actual  possession  has  a  seiguorj%  which  he 
in  his  turn  holds  of  a  superior,  till  the  head  of  the  system — the 
king — is  reached. 

The  gi-adual  definition  of  the  respective  interests  of  lord  and 
tenant,  the  development  of  the  various  kinds  of  interests  in 
lands,  their  distinction  in  point  of  duration,  joint  ownership,  and 
so  forth,  belongs  to  the  period  when  the  constitution  was  so  far 
organised  as  to  admit  of  the  action  of  regular  tribunals  having 
regard  to  precedent  and  authority.  The  reign  of  Henry  II  is 
the  period  to  which  the  origin  of  the  English  law  of  land  in  its 
modern  form  must  be  referred.  It  will  be  seen  in  the  next 
chapter  how  great  an  advance  had  been  made  before  the  end  of 
that  reign  in  the  direction  of  the  separation  of  law  and  custom, 
and  of  establishing  fundamental  legal  principles  on  a  firm  basis. 

'  The  jurisdiction  of  the  leet  was  probably  cut  down  by  the  42iid  section 
of  Magna  Carta  (ed.  1217,  Stubbs,  p.  337),  by  which  it  is  provided  that 
the  sheriff  is  to  make  his  tourn  in  the  hundred  twice  only  in  the  year,  and 
that  the  view  of  frank-pledge  is  to  take  place  only  at  Michaelmas. 

^  So  far  is  this  carried  that  a  stranger  passing  by  may  be  compelled  to 
serve  on  the  leet  jury.  The  fact  of  his  being  found  within  the  district  is 
deemed  sufficient  residence.     Ritson,  p.  56. 

'  See  Chap.  V.  §  6. 


4^  Authorities.  [chap. 

Authorities. 

I.  Anglo-Saxon  Grants  of  Bocland. 

The  following  tlii'ee  charters  are  taken  from  Kemble's  Codex 
Diplomaticus  JEvi  Saxonici,  as  specimens  illustrating  the  main 
characteristics  of  Anglo-Saxon  customary  law  above  referred  to. 

Gift  of  Lands  to  a  Church  by  Uuihtb^d  of  Kent. 

A.D.  700  or  715. 


In  nomine  Domini  Dei  nostri  Jesu  Christi  ^  Ego  Uuihtredus 
rex  Cantuariorum  prouideas  mihi  -  in  futuro  decreui  dare  ^  aliquid 
omnia  mihi  donanti  et  consilio  accepto  bonum  uisum  est  con- 
ferre  basilicae  beatae  Mariae  genetricis  Dei  quae  sita  est  in  loco 
qui  dicitur  Limingae  terram  iiii  aratorum  quae  dicitur  Pleghel- 
mestun    cum    omnibus  ad  eandem  ten-am    pei'tinentibus  juxta 

'  '  A  Saxon  charter  properly  so  called,  and  distinguished  from  a  will  or  the 
record  of  a  synodal  decree,  consists  of  all  or  some  of  the  following  portions  : 
i.  the  invocation,  ii.  the  proem,  iii.  the  grant,  iv.  the  sanction,  v.  the  date, 
vi.  the  teste.'  Kemble's  Int.  to  Cod.  Dipl.  p.  ix.  Charters  frequently  begin 
with  'In  nomine  Domini,' '  In  nomine  Domini  nostri  Jhesu  Christi,'  etc. 

^  The  charter  then  usually  goes  on  to  state  some  religious  ground  for  the 
gift.  '  As  a  general  rule  it  may  be  observed  that  before  the  tenth  century 
the  proem  is  comparatively  simple,  that  about  that  time  the  influence  of 
the  Byzantine  court  began  to  be  felt,  and  that  from  the  latter  half  of  that 
century  pedantry  and  absurdity  struggle  for  the  mastery.' — Kemble,  ubi 
sup.  p.  X. 

^  No  formal  words  of  grant  appear  to  have  been  required ;  the  usual 
expressions  are,  dono,  trado,  dabo  et  concede.  '  The  granting  words  are 
numerous  and  manifold,  and,  though  part  of  the  formulary,  do  not  appear 
to  be  introduced  according  to  any  settled  and  invariable  rule.  It  may  be 
observed  of  them  in  general  that  they  are  much  simpler  than  the  cor- 
responding forms  of  the  Continent,  and  especially  that  they  show  no  such 
strict  and  formal  combinations  as  those  met  with  in  Eoman  documents. 
Do,  dono,  concedo,  trado,  are  the  most  in  use,  sometimes  singly,  sometimes 
combined ;  and  one  noticeable  peculiarity  is  that  in  place  of  the  present 
tense  do,  we  usually  have  the  future  dabo.' — Kemble,  ib.  p.  xxviii. 


I.]  Anglo-Saxon  Charters.  47 

notissimos  terminos  etc ten'ulae  quoque  partem  ejusdeni 

Dei  genetrici  beatae  Mariae  similiter  in  perpetuum  possidendum 
perdono  cujus  uocabulum  est  Ruminingseta  ad  pastvim  videlicet 
ovium  trecentorum  ad  australem  quippe  flumiuis  quae  appellatiu- 
Liminaea  terminos  vero  huius  terrulae  ideo  non  ponimus  quo- 
niam  ab  accolis  undique  certi  sunt.  Quam  donationem  meam 
uolo  firmam  esse  in  perpetuum  ut  nee  ego  seu  haeredes  mei 
aliquid  imminuere  praesumant.  Quod  si  aliter  temptatum  fuerit 
a  qualibet  persona  sub  anatliematis  interdictione  sciat  se  prae- 
uaricari  ^  ad  cuius  confirniationem  pro  ignorantia  litterarum  sig- 
num  sanctae  crucis  express!  et  testes  idoneos  ut  subscriberent 
rogavi  id  est  Berhtuualdum  arcliiepiscopum  virum  venerabilem. 

>i<  Ego  Berhtuualdus  episcopus  rogatus  consensi  et  subscripsi. 

►I*  Signum  ^  manus  Uuihtredi  regis. 

►i*  Signum  manus  ^tliilburgae  reginae. 

(Other  signatures  follow  in  the  same  form. — Codex  Diploma- 
ticus,  i.  p.  54,  no.  xlvii.) 


Gift  by  Oswald,  Bishop  of  "Woecestee.     a.d.  963. 

>J<  Ego  Oswold  ergo  Christi  crismate  praesul  iudicatus  domi- 
nicae  incarnationis  anno  dcccclxiii  annuente  resfi  Ano-lorum 
EadgarcP^Elfereque  Merciorum  comite  ^  necnon  et  familiae  Wio- 
gornensis  aecclesiae  quandam  ruris  particulam  unam  uidelicet 
mansam  *  in  loco  qui  celebri  a  soliculis  nuncupatur  set  Heortford 

'  A  clause  threatening  terrible  consequences,  generally  excommunica- 
tion and  eternal  punishment,  to  any  who  do  not  respect  the  grant,  is  the 
fourth  characteristic  feature  in  Anglo-Saxon  charters.  Kemble  observes 
(Cod.  Dipl.  i.  Ixv)  that  '  the  exclusively  clerical  nature  of  the  sanction  in 
Anglo-Saxon  charters  (even  where  these  are  grants  by  private  individuals) 
is  evidence  of  our  being  indebted  for  the  forms  of  these  instruments  to 
Roman  clergymen.'  In  the  later  charters  this  clause  often  presents  the 
extreme  of  extravagance  and  pedantry  in  its  language. 

^  The  charters  of  the  Anglo-Saxons  were  signed,  not  sealed.  The  use  of 
the  seal  was  introduced  by  the  Normans.     See  Kemble,  Cod.  Dipl.  i.  ci. 

^  This  grant  is  made  with  the  assent  of  the  king  and  of  the  earl.  This 
seems  to  have  been  usual  in  the  grants  of  bocland  by  great  men.  See 
the  grant  by  Wulfric,  A.D.  947,  Cod.  Dipl.  vol.  ii.  p.  273. 

*  According  to  Kemble  (Saxons  in  England,  i.  p.  92)  mnnsa=famiUa 
as  applied  to  land,  an  expression  for  the  hide  which  was  enough  for  the 
support  of  a  single  family,  and  which  varied  in  different  localities  :  and  see 
Spelman,  sub  voc. 


48  Authorities.  [chap. 

uocabulo  cuidam  ministro  meo  nomine  -^))elno^  perpetua  lar 
gitus  haereditate  et  post  vitae  suae  terminum  duobus  tantum 
haeredibus  ^  immunem  derelinquat  quibus  defunctis  ecclesiae  Dei 
in  Weogorna  ceastre  restituatur. 

(Then  follow  the  boundaries.) 

Scripta  est  haec  cartula  his  testibus  consentientibus  quorum 
inferius  notantur  uomina. 

(Then  follow  the  names. — Codex  Diplomaticus,  ii.  p.  399, 
No.  dix.) 


Charter  of  Cnut.     a.d.  1033. 

P  Regnante  imperpetuum  Deo  ct  Domino  nostro  Jhesu  Christo 
cum  cujus  imperio  hie  labentis  saeculi  prosperitas  in  adversis 
successibus  sedulo  permixta  et  conturbata  cernitur  et  omnia 
visibilia  et  desiderabilia  ornamenta  hujus  mundi  ab  ipsis 
amatoribus  cotidie  transeuut,  ideo  beati  quique  ac  sapientes 
cum  his  fugitivis  saeculi  divitiis  aeterna  et  jugiter  permausura 
gaudia  caelestis  patriae  magnopere  adipisci  properant  iccirco 
ego  Cnut  rex  Anglorum  caeterarumque  gentium  in  circuitu 
persistentium  gubernator  et  rector  quandam  mei  propjii  juris 

^  Kemble  has  collected  (Cod.  Dipl.  i.  xxx  seq.)  various  other  instances  of 
grants  of  interests  in  lands  short  of  absolute  and  unqualified  inheritances. 
Two  of  the  most  remarkable  are  the  following  : — '  In  jus  possessionemque 
sempitemam  sibimet  ad  habendum  quamdiu  vivat,  suoque  relinquendum 
fratre  germane  diutius  siiperstes  si  fuerit  .  .  .  .  et  sic  semper  in  ilia 
sanguinitate  paternae  gensrationis,  sexuque  virili,  perpetualiter  consistat 
adscripta.'  '  Rus  etiam  hoc  mode  donatum  est,  ut  suum  (?  semen)  mas- 
culum  possideat  et  non  femininum  :  et  post  obitum  prosapiae  ilHus,  data  sit 
tarn  villa  quam  universa  terra,  quae  in  sua  potestate  est,  ad  religiosam 
ecclesiam,  quae  nuncupatur  Eofesham.'  The  case  in  the  text  of  a  grant 
for  life  with  a  further  interest  to  one  or  two  other  persons  for  life,  with 
ultimate  reversion  to  the  grantor,  is  by  no  means  uncommon,  especially  in 
leases  of  church  lands.  'An  early  Anglo-Saxon  council  had  indeed  pro- 
hibited such  grants  of  a  longer  term  than  the  life  of  the  grantee,  but  this, 
which  had  probably  never  been  well  observed,  had  fallen  into  utter  desuetude 
in  the  tenth  century.' — Kemble,  Cod.  Dipl.  i.  p.  xxxiv.  The  absence  of 
technical  language  which  prevailed  to  so  great  an  extent  after  the  Con- 
quest is  very  remarkable  in  these  grants  of  limited  interests. 


I,]  Anglo-Saxon  Charters.  49 

portionem '  vii  terrae  mansas  illo  iu  loco  ubi  jamdudum 
solicolae  illius  regionis  nomen  imposuerunt  Hortuu  meo  fideli 
ministro  quern  noti  atque  affines  Boui  appellare  solent 
confirmo  haereditatem '"^  quatinus  ille  bene  perfruatur  ac 
perpetualiter  possideat  quamdiu  Deus  per  suam  mirabilem 
misericordiam  vitam  illi  et  vitalem  spiritum  coucedere  uoluerit 
deinde  namque  sibi  succedenti  cuicumque  libuerit  cleromoni 
jui-e  haereditario  derelinquat  ceu  supradiximus  in  aeternam 
haereditatem.  Maueat  igitur  hoc  nostrum  immobile  donum 
aeterna  libertate  jocundum  cum  universis  quae  rite  ad  euudem 
locum  pertinere  dinoscuntur  tarn  in  magnis  quam  in  modicis 
rebus  in  campis  pascuis  pratis  siluis  riuulis  aquarumque  cur- 
sibus  excepto  quod  communi  labore  quod  omnibus  liquids 
patet  uidelicet  expeditione  pontis  constructione  arcisve  muni- 
tione.  Si  autem  tempore  contigerit  aliquo  quempiam  hominum 
aliquem  antiquiorem  librum  contra  istius  libri  libertatem 
producere  pro  nichilo  computetur.  Si  quis  autem  tetri 
daemonis  instinctu  hoc  nostrum  decretum  infringere  uoluerit 
sit  ipse  a  sanctae  Dei  aecclesiae  consortio  separatus  et  inferna- 
libus  aeternaliter  flammis  cum  Juda  Christi  proditore  cruci- 
andus  nisi  hie  prius  digna  satisfactione  poenituerit  quod 
contra  nostrum  deliquit  decretum.  Acta  vero  est  praesens  par- 
srameni  scedula  anno  dominicae  incarnationis  millesimo  xxxiii 
indictione  vero  prima*.  Istis  termims  supradicta  terra  cir- 
cumgirata  est. 

(The  boundaries  follow  in  Anglo-Saxon.) 

Ista  cartula  illorum  testium  testimonio  est  corroborata  quorum 
hie  uocabula  litteris  uidentur  caraxata.  ^  Ego  Cnut  gubernator 
sceptri  huius  insulae  banc  nostri  decrcti  breuiunculam  almae 
crucis  notamine  muniens  roboraui.  ^  Ego  vE^elno^  Dorouer- 
nensis  archiepiscopus  consensi  et  subscripsi.  >I«  Ego  TElfric 
archiepiscopus  corroboraui.  ►}<  Ego  Brihtwold  episcopus  confir- 
maui.  ^  Ego  vElfwine  episcopus,  etc. — (Codex  Diplomaticus, 
vi.  p.  180.  no.  mcccxviii.) 


*  See  above,  p.  i8. 

*  It  should  be  observed  that  even  in  this  more  elaborate  form  of  charter 
there  is  no  technical  form  of  words  used  to  express  the  nature  of  the  estate 
which  the  grantee  is  to  take  or  the  manner  in  which  it  is  to  be  held. 

^  As  to  the  indietions  or  cycles  of  fifteen  years,  see  Kemble,  Cod.  Dipl. 
i.  Ixxvii. 

E 


^o  Authorities.  [chap. 

2.  A   Feoffment  in  Fee  of  the  time  of  Henry  II. 

A  comparison  of  the  following  document  with  the  Anglo- 
Saxon  grants  above  given  will  illustrate  the  main  features  of 
the  change  which  took  place  in  the  law  of  land  after  the 
Conquest.  It  should  be  especially  observed  that  the  charter 
purports  only  to  be  evidence  of  a  grant  which  had  already 
taken  place.  The  grant  of  the  freehold  is  effected  by  actual 
delivery  of  the  possession,  the  words  written  or  spoken  point 
out  the  nature  and  extent  of  the  interest  taken.  Then  follow 
the  words  sibi  et  liaei-edihus  suis,  which  have  now  a  technical 
signification,  and  denote  that  the  interest  to  be  taken  by  the 
grantee  is  a  fee  ^,  or  an  estate  of  inheritance ;  in  other  words, 
an  estate  descendible  to  the  heirs  of  the  grantee  so  long  as  any 
are  in  existence,  as  opposed  to  an  estate  given  to  last  only 
during  the  grantee's  own  life.  Then  follow  the  words  which 
form  the  great  characteristic  of  grants  of  land  for  the  period 
extending  from  the  reign  of  Henry  II  to  the  eighteenth  year  of 
Edward  I,  *  tenendum  de  me  et  haeredibus  meis.'  There  is  no 
longer  the  concej)tion  that  property  in  land  is  absolute,  the 
property  is  divided  between  the  tenant  in  actual  possession  and 
his  lord,  or  if  there  be  more  than  one  superior  lord,  between 
the  tenant,  the  mesne  lord,  and  the  king,  each  'holding  of 
the  other.  If  any  subordinate  interest,  say  for  instance  that 
of  the  tenant  in  possession,  is  eliminated,  the  whole  of  such 
interest  at  once  devolves  upon  his  immediate  superior.  So 
if  the  heirs  of  the  tenant  fail,  the  land  '  escheats '  to  the  imme- 
diately superior  lord.  Thus  in  consequence  of  this  relation 
between  tenant  and  lord,  the  tenant's  interest  is  regarded  as 
something  less  than  the  whole  property  —  as  an  estate  of 
greater   or   less  extent  in  point  of  duration,  for  instance  as 

•  Fee  has  now  two  senses  :  (i)  it  means  land  holden  of  a  lord,  as  opposed 
to  land  owned  alodially  =  fief;  (2)  an  estate  of  inheritance,  as  opposed  to 
an  estate  for  life ;  feodum  as  opposed  to  liherum  tenementum,  also  used  in  a 
secondary  sense  for  an  estate  for  life.  Feodum  or  fee  usually  bears  the 
second  of  the  above  senses. 


I.]  A  Feoffment.  51 

lasting  only  for  his  life,  or  till  all  his  legitimate  heirs  have 
failed.  Henceforth  therefore  the  law  speaks  of  estates,  and 
not  of  property  or  ownership  in  land.  The  notion  of  tenure 
also  involves  the  notion  of  correlative  rights  and  duties  exist- 
ing between  the  lord  and  his  tenant,  of  which  the  service 
i-eserved  in  the  grant  is  the  principal.  The  service  mentioned 
in  the  following  grant  is  that  which  is  regularly  due  for  a 
single  knight's  fee  ^  The  latter  part  of  the  charter  follows  the 
character  of  the  forms  in  use  before  the  Conquest. 

Feoffment  in  Fee. 

RiCARDUS  de  Luci  omnibus  hominibus  suis  atque  amicis 
Francis  et  Anglis  tarn  praesentibus  quam  futuris  totius  Angliae 
salutem.  Sciatis  me  dedisse  et  concessisse  Eadulfo  Britono 
Terram  Chiggewillae  cum  omnibus  pertinentibus  eidem  terrae 
sibi  et  haeredibus  suis  ad  tenendum  de  me  et  de  haeredibus 
meis  in  feodo  et  haereditate  per  servicium  unius  militis  ^. 
C^uare  volo  et  firmiter  praecipio  quod  idem  Radulfus  et  haeredes 
sui  terram  illam  teneant  in  bene  et  in  pace  et  libere  et  quiete 
et  honorifice,  in  bosco  et  piano  in  pratis  et  pasturis  in  aquis 
in  viis  et  semitis  et  in  omnibus  aliis  rebus  quae  terrae  illi 
pertinent.  Testibus,  etc. — (Madox,  Formulare  Anglicanura,  no. 
cclxxxviii.) 

*  See  more  on  this  point,  below,  Chap.  III.  §  10. 

*  That  is,  the  service  of  a  single  knight  or  fully-armed  horseman  to 
serve  at  his  own  expense  for  forty  days  in  the  year  (Stubbs,  Const.  Hist.  i. 
p.  432).  This  is  the  usual  form  for  expressing  that  the  lands  are  to  be 
held  by  actual  military  service.  The  minimum  of  land  constituting  a 
knight's  fee  seems  by  this  time  to  have  been  fixed  at  the  area  which  was 
worth  twenty  pounds  annual  value.  See  Stubbs,  Const.  Hist.  i.  p.  264. 
For  an  account  of  the  probable  history  of  the  gradual  introduction  of 
knights'  fees,  see  Stubbs,  ib.  p.  262. 


£  2 


CHAPTER  II. 

STATE  OF  THE  LAW  EELATING  TO  LAND  IN 
THE  REIGN  OF  HENEY  II. 

In  the  preceding  chapter  an  attempt  has  been  made  to  trace 
the  working  of  the  various  elements  of  which  the  common  law 
relating  to  laud  is  composed.  It  has  been  seen  that  the  con- 
vergence of  distinct  streams  of  customary  law,  aided  by  the 
process  of  conquest  and  settlement  of  the  land  and  the  growth 
of  political  organisation  under  a  powerful  ruler,  had  resulted  in 
the  establishment  of  a  general  body  of  law  prevailing  throughout 
the  country,  with  some  variations  in  particular  localities. 

This  body  of  law  may  properly  be  called  customary  law.  It 
rests  for  the  most  part  not  on  any  distinct  enactment  of  a 
legislator  or  body  of  legislators,  nor  does  it  appeal  for  its 
authority  to  recorded  judicial  decisipns.  At  the  same  time  it 
fixes  the  rights  and  duties  of  the  inhabitants  of  the  countiy,  it  is 
recognised  and  enforced  by  the  authority  of  the  assemblies  and 
tribunals.  In  this  early  stage  of  legal  history  law  and  custom 
cannot  be  distinguished.  That  a  practice  is  customary  is  all  the 
justificatiou  which  would  be  required  if  its  legality  were  called  in 
question  \  lu  a  maturer  state  of  society  the  distinction  between 
law  and  custom  comes  to  be  clearly  marked,  though  the  unhappy 
phraseology  of  our  legal  text-books  has  tended  to  obscure  the 
matter  by  identifying  custom  with  the  common  law^. 

>  See  Maine's  Village  Communities,  p.  68. 

2  See  Blackstone,  i.  p.  68.  On  the  distinction  between  custom  and  law, 
and  the  inaccuracy  involved  in  speaking  of  custom  as  a  source  of  law,  see 
Austin's  Jurisprudence  (Campbell's  edition),  p^x  553-560.  Mr.  Austin's 
analysis  should  however  be  taken  with  the  qualification  suggested  by  Sir  H. 
Maine  (Village  Communities,  pp.  66-68),  that  it  is  applicable  only  to  a 
mature  system  of  jurisprudence,  and  not  to  law  in  its  earlier  stages. 


Law  in  the  reign  of  Henry  TI.  53 

Following  the  analysis  of  Mr.  Austin',  and  applying  that 
analysis  to  a  civilised  community  which  has  attained  to  regular 
legislative  and  judicial  institutions,  positive  law  properly  so  called 
may  be  referred  to  two  sources — direct  legislation  and  the  action 
of  the  tribunals.  In  other  words,  laws  are  made  either  directly  in 
the  shape  of  general  rules  imposed  by  or  luider  the  authority  of 
the  supreme  power  in  the  community,  or  they  are  made  indi- 
rectly by  the  tribunals  in  deciding  upon  particular  cases. 

The  latter  class  of  laws  are  sometimes  called  judge-made,  or 
judiciary  laws.  Inasmuch  as  the  decision  of  a  pai'ticular  case 
in  a  civilised  community  depends  upon  some  general  rule,  that 
is,  rests  on  the  assumption  that  a  righteous  judge  would  always 
give  the  same  decision  under  the  same  circumstances,  eveiy 
decision  either  consists  in  the  application  of  an  actually  pre- 
existing rule  of  law,  or  proceeds  as  if  there  had  been  such  a  ride, 
when  in  fact  there  was  none.  In  the  latter  case  the  tribunal  in 
effect  makes  a  law  for  itself  ex  post  facto.  Add  to  this  the 
tendency  in  every  civilised  community  that  one  decision  should 
become  the  precedent  for  another,  in  other  words,  that  a  rule 
once  applied  by  a  tribunal  of  competent  authority  should  be 
acted  upon  by  other  tribunals  in  similar  circumstances,  and  we 
have  the  account  of  what  is  called  judicial  legislation'^.  Suppose, 
for  instance,  that  there  is  no  fixed  rule  whether,  on  the  decease 
of  a  tenant  in  fee  simple,  his  grandson  (son  of  a  predeceased  elder 
son)  or  his  younger  son  succeeds  to  the  lands.  The  question 
arises  for  judicial  decision.  The  tribunal  decides  (no  matter  on 
what  ground,  whether  adopting  a  custom,  or  following  some 
rule  of  some  other  system  of  law,  or  on  considerations  of  gene- 
ral expediency,)  that  the  grandson  is  entitled  in  preference  to 
bis  uncle.     This  solemn  decision  by  a  competent  tribunal  is 

*  See  Lectxires  xxviii,  xxis,  xxxvii. 

*  Judicial  decisions  are  usually  spoken  of  iu  the  text-books  (see  the 
chapter  in  Blackstone,  vol.  i.  Of  the  Laws  of  England)  not  as  the  source  of 
laws,  but  as  evidence  of  a  preexisting  law.  The  examination  of  this  view, 
which  would  at  the  present  day  have  few  theoretical  supporters,  though  its 
practical  influence  is  still  considerable,  would  occupy  too  much  space.  The 
reader  is  therefore  referred  to  the  lectures  of  Mr.  Austin  mentioned  above. 


54  Stahite  and  Judiciary  Law.  [chap. 

recorded,  and  becomes  a  precedent  for  other  similar  decisions. 
Thus  a  rule  of  law  is  created.  It  is  impossible  to  say  precisely 
at  what  point  a  rule  thus  acted  upon  by  a  tribunal  becomes  a 
rule  of  law.  Sometimes  a  single  decision  is  sufficient,  sometimes 
it  requires  a  series  of  similar  decisions  before  it  can  be  asserted 
that  the  principle  forming  the  ground  of  the  decision  has  been 
erected  into  a  rule  of  law.  The  simplicity  or  complexity  of  the 
proposition,  the  weight  and  eminence  of  the  tribunal,  the  cir- 
cumstances attending  the  decision,  all  influence  the  conditions 
I'equisite  for  the  establishment  of  the  proposition  as  a  rule  of 
law.  When  however  it  is  for  all  practical  pm'poses  certain  that 
a  definite  rule,  having  been  the  ground  of  judicial  decision  on 
one  or  more  occasions,  will  be  again  acted  upon  by  the  tribunals 
whenever  occasion  arises,  the  rule  may  be  said  to  have  become 
a  rule  of  law.  It  may  have  existed  previously  as  a  rule  of  custom, 
or  a  rule  of  a  foreign  system  of  law,  but  its  adoption  by  the 
tribunals  gives  it  a  new  and  different  character,  and  causes  it 
to  take  its  place  amongst  the  laws  of  the  land. 

It  is  clear  therefore  that  positive  law  properly  so  called  does 
not  arise  until  a  community  has  progressed  sufficiently  to  have 
attained  to  settled  legislative  and  judicial  institutions.  Accord- 
ingly in  our  own  country  we  find  the  first  existence  of  a  body  of 
law  properly  so  called,  as  opposed  to  a  floating  mass  of  custom, 
contemporaneous  with  the  completion  of  the  political  organisa- 
tion. The  reign  of  Henry  II  is  ^he  starting-point  of  the 
history  of  modern  English  law,  as  well  as  of  the  modern 
English  constitution. 

Of  the  two  sources  of  law  above  noticed,  direct  or  proper  legis- 
lation, and  indirect  or  judicial  legislation,  the  field  of  direct  legisla- 
tion, or  of  Statute  Law,  is  as  yet  very  limited.  There  are  however 
various  important  legislative  acts  during  this  reign.  But  with 
the  exception  of  the  gi-eat  changes  made  in  the  procedure  of  the 
tribunals,  especially  in  the  institution  of  the  grand  assize  and  re- 
cognitions \  they  have  little  bearing  on  the  law  relating  to  land. 

It  is  to  the   organisation   of  the  judicial  institutions  of  the 

^  See  extracts  from  Glanvill,  below,  §§  i  and  8. 


II.]  Law  in  the  reign  of  Henry  II.  55 

country  that  the  rapid  development  of  the  Common  Law^  re- 
lating to  land  which  took  place  in  the  interval  between  the 
beginning  of  the  reign  of  Heniy  II  and  the  end  of  that  of  Henry 
III  is  owing.  It  has  been  seen,  in  the  preceding  chapter,  that 
in  the  various  manors  the  manor  court  had  jurisdiction  over 
questions  arising  within  the  manor.  But  supreme  over  all 
was  the  King's  Court,  which  partook  of  the  character  of  the 
supreme  Court  Baron,  and  was  also  the  chief  national  legis- 
lative and  judicial  institution  of  the  country^.  The  king,  in 
his  combined  capacity  of  sovereign  of  the  nation  and  lord  para- 
mount of  all  the  land,  asserted  his  right  to  adjudicate  by  himself 
or  his  representatives  ^  upon  all  questions  relating  to  the  free- 
hold, and  to  control  the  local  jurisdictions  of  the  lords  of  the 
manors.  The  jurisdiction  of  the  royal  or  central  court  was 
exercised  partly  at  Westminster  or  elsewhere,  where  the  king's 
court  happened  to  be  in  attendance  upon  the  king's  pei'son, 
pai'tly  by  the  organisation  of  judicial  itinera  or  pi-ogresses  by 
members  of  the  King's  Court  (Curia  Regis)  for  judicial  and 
other  purposes  throughout  the  country  *. 

Thus  there  came  into  existence  regular  judicial  institutions 

*  The  expression  Common  Law  will  henceforward  be  frequently  em- 
ployed. It  must  be  borne  in  mind  that  the  expression  is  used  (i)  in  oppo- 
sition to  Statute  Law,  (2)  in  opposition  to  Equity,  (3)  in  opposition  to 
Civil  or  Roman  Law.  The  Common  Law  is  (i)  that  portion  of  the 
present  or  former  law  of  the  land  which  does  not  rest  on  Statute ;  the 
judicial  decisions  of  the  Courts  of  Common  Law,  King's  Bench,  Common 
Pleas,  Exchequer,  are  according  to  Blackstone  the  evidence,  according  to 
Austin  the  source,  of  the  Common  Law.  (2)  In  its  second  sense,  Common 
Law  is  that  portion  of  the  law  which  is  administered  in  the  Common  Law 
tribunals,  and  thus  is  opposed  to  Equity,  and  to  the  law  administered  in  the 
Ecclesiastical  tribunals  and  their  successors  (the  Courts  of  Probate  and 
Divorce),  and  the  Court  of  Admiralty.  (3)  When  opposed  to  Civil  or 
Roman  Law,  Common  Law  includes  Equity. 

*  As  to  the  Curia  Regis,  its  composition  and  relation  to  the  Council,  see 
Stubbs,  Select  Charters,  p.  22  ;  and  for  the  formation  of  a  regidar  Supreme 
Court  of  Justice  by  Henry  II,  see  the  extract  from  Benedictus  Abbas 
(i.  207)  in  Stubbs,  ib.  p.  125,  and  in  Const.  Hist.  i.  pp.  598-604. 

^  See  the  form  of  writ  given  below,  §  i. 

*  See,  for  an  account  of  the  history  of  these  circuits,  Stubbs,  Select 
Charters,  p.  134,  and  Const.  Hist.  i.  p.  604. 


^6  Growth  of  the  Common  Law.  [chap. 

with  all  their  concomitants.  The  practice  of  recording  decisions  ^ 
given  by  men  who  became  in  fact  professional  judges,  the 
discussion  and  sifting  of  points  of  law,  the  desire  to  attain  to 
uniformity  of  legal  rules  throughout  the  country,  are  all  charac- 
teristic of  the  time  of  Henry  II. 

Amongst  the  causes  of  the  rapid  development  of  the  Common 
Law  as  a  system  should  be  taken  into  account  the  powerful 
effect  upon  men's  imagination  of  the  Roman  Law  ^.  There  can 
be  little  question  that  acquaintance  with  a  mature  system  of 
foreign  law  must  have  greatly  accelerated  the  process  of  simpli- 
fying and  systematising  floating  custom,  and  bringing  the  body 
of  native  customary  law  into  some  resemblance  to  a  regular 
corpus  juris.  The  direct  effect  of  the  Roman  Law  upon  the  law 
of  land  is  not  however  very  conspicuous  till  the  reign  of  Henry 
III,  when  its  influence  appears  in  almost  every  line  of  Brac- 
ton's  great  treatise. 

The  connexion  of  the  growth  of  the  Common  Law  with  the 
development  of  judicial  institutions  is  strikingly  exemplified  in 
the  treatise  of  Glanvill,  who  was  Chief  Justiciar  for  the  last 
nine  years  of  this  reign.  The  object  of  this  work  is  the  expo- 
sition of  the  practice  of  the  King's  Court.  It  deals  principally 
with  procedure  or  the  mode  of  enforcing  legal  rights,  but  inci- 
dentally also  with  the  rights  themselves  ^     In  the  county  courts 

^  The  Rotuli  Curiae  Regis,  the  earliest  law  reports  at  present  printed, 
begin  in  the  sixth  year  of  the  reign  of  Richard  I. 

2  In  this  country  the  growth  of  the  study  of  the  Roman  Law  is  marked 
by  the  lectures  of  Vacarius  in  Oxford,  A.D.  1149.  From  this  time  forward 
the  study  of  the  Civil  and  Canon  Law  progressed  rapidly,  without  at  first 
coming  into  collision,  as  was  afterwards  the  case,  with  the  Common  Law. 

^  The  following  extract  from  Glanvill's  preface  illustrates  the  transition 
above  indicated  from  customary  law  to  positive  law  properly  so  called, 
and  the  introduction  of  the  allusion  to  Roman  Law  seems  to  show  how 
powerful  an  influence  the  conception  of  a  systematic  body  of  written  law 
had  upon  the  writer's  mind : — 

'  Leges  namque  Anglicanas,  licet  non  scriptas,  leges  appellari  non  videtur 
absurdum,  cum  hoc  ipsum  lex  sit  quod  principi  placet  et  legis  habet  vigo- 
rem'  (see  Just.  Inst.  i.  2.  6)  'eas  scilicet  quas  super  dubiis  in  consilio 
definiendis  procerum  quidem  consilio,  et  principis  accedente  auctoritate 
constat  esse  promulgatas.    Si  enim  ob  scripturae  solummodo  defectum  leges 


II.]  Law  in  the  reign  of  Henry  II.  57 

held  before  the  sheriff,  and  in  the  courts  of  the  lords  of  the 
manors,  so  great  was  the  variety  of  the  customs  which  were 
observed  and  enforced,  that  Glanvill  declines  to  attempt  any 
statement  of  them  \  But  in  the  reign  of  Henry  II  the  principle 
had  become  firmly  established  that  the  king  or  his  justices  had 
cognizance  of  every  suit  relating  to  land.  No  plea  relating  to 
the  freehold  could  be  held  unless  the  proceeding  was  commenced 
by  writ  or  precept  issuing  from  the  king  under  the  great  seal. 
Directly  or  indirectly,  means  were  provided  for  bringing  the 
suit  before  the  representatives  of  the  king^,  and  thus  the 
authority  of  the  royal  court  was  felt  throughout  the  length  and 
breadth  of  the  land  ;  the  rules  which  the  Curia  Regis  observed 
became  the  general  law  of  the  land.  In  some  localities  customs 
still  prevailed  which  were  sufficiently  strong  to  be  adopted  as 
local  laws.  Thus  in  Kent,  in  many  boroughs,  notably  in  London 
and  York,  local  customs  obtained  the  force  of  laws  which  differed 
in  some  respects,  especially  as  to  the  mode  of  devolution  of  lands 
ah  intestato  and  power  of  disposition  by  will,  from  the  general  law 
of  the  land.  The  tendency  however  of  the  action  of  the  Curia 
Regis,  subject  to  these  and  other  important  exceptions,  was  to 
establish  a  uniform  system  of  law  and  to  override  local  custom. 

The  treatise  of  Glanvill  being  principally  upon  procedure, 
the  rights  recognised  and  enforced  by  the  Curia  Regis  are  only 
incidentally  noticed.  The  following  extracts  will  hoAvever  be 
found  to  throw  light  on  some  of  the  most  important  points  in 
the  early  law  of  land. 

minime  censerentur,  majoris  proculdubio  auctoritatis  robur  ipsis  legibiis 
videretur  accomraodare  scriptura,  quam  vel  decernentis  aequitas  vel  ratio 
statuentis.  Leges  autem  et  jura  regni  scripto  universaliter  concludi  nostris 
temporibus  omnino  quidem  impossibile  est,  cum  propter  scribentiiun  igno- 
rantiam,  turn  propter  earum  multitudinem  confusam  ;  verura  sunt  quaedam 
iu  curia  generalia  et  frequentius  usitata,  quae  scripto  conimendare  non 
mihi  videtur  praesumptuosum,  sed  et  plerisque  perutile,  et  ad  adjuvandam 
memoriam  admodum  necessarium.  Horum  itaque  particulam  quandara  in 
scripta  redigere  decrevi,  stilo  vulgari,  et  verbis  curialibus  utens  ex  indus- 
tria,  ad  notitiam  comparandam  eis  qui  hujusmodi  vulgaritate  minus  sint 
exercitati.' 

'  See  Glanvill,  lib.  xii.  cap.  6,  and  lib.  xiv.  cap.  8.      ^  See  below,  §  i. 


58  Extracts  from  Glanvill.  [chap.  it. 

EXTKACTS    FROM    GlANVILL. 

§  I.     Sup'emacy  of  Curia  Regis  in  matters  relating  to  the 

Freehold. 

The  following  passages  illustrate  what  has  been  said  above 
as  to  the  concentration  of  jurisdiction  relating  to  the  freehold 
in  the  hands  of  the  Curia  Regis,  and  the  consequent  establisL- 
ment  of  a  uniform  system  of  law. 

The  fundamental  rule  now  completely  recognised  which  pro- 
duced this  result  was  that  no  one  was  bound  to  answer  in  the 
court  of  his  lord  concerning  his  freehold  without  the  king's  writ. 

The  writs  given  below  (lib.  i.  cap.  6,  lib.  xii.  cap.  3)  consti- 
tute the  appropriate  mode  of  commencing  that  form  of  real ' 
action  called  a  writ  of  right.  The  object  of  this  is  to  determine 
a  disputed  right  of  property  in  the  land,  the  question  to  be 
decided  being — which  of  the  two  litigants  majus  jus  habet  in 
the  land  in  question.  Opposed  to  the  writ  of  right  is,  as 
will  be  seen  later,  the  mode  of  remedy  which  only  goes  to 
decide  which  of  the  two  has  the  right  to  the  possession  of  the 
laud.  A  writ  of  right  might  either  be  brought  directly  in  the 
Cui'ia  Regis,  in  which  case  the  writ  is  addressed  to  the  sheriff, 
and  is  similar  in  form  to  other  actions ;  or  it  might  be  com- 
menced iu  the  territorial  court  by  w^it  from  the  king ;  thence, 

'  The  distinction  between  real  and  personal  actions  is  given  by  Bracton 
(loi  b;  see  Reeves,  vol.  i.  336).  Eeal  actions  had  for  their  object  the 
assertion  of  the  claimant's  right  to  the  possession  or  property  of  a  freehold 
interest  in  land,  and  resulted  in  the  recovery  of  the  right.  Personal  actions 
usually  had  for  their  object  the  assertion  of  the  right  to  damages  for  injuries 
to  persons  or  to  property,  or  for  breaches  of  contract.  Like  many  other  dis- 
tinctions in  our  law,  this  phraseology  was  borrowed  from  the  Roman  Law, 
and  is  derived  from  the  distinction  between  actiones  in  rem  and  actiones  in 
personam.  The  Roman  actio  in  rem  had  for  its  object  the  assertion  of  the  right 
of  property  in  anything  which  was  the  subject  of  property,  whether  moveable 
or  immoveable.  Actiones  in  personam  had  for  their  object  the  assertion  of 
an  obligation  incumbent  on  a  particular  person  to  do  or  render  something  to 
the  plaintiff.  The  prominence  of  reehold  interests  in  lands,  as  the  subject- 
matter  of  rights,  accounts  for  the  narrower  scope  of  'real  actions'  in 
English  Law.    See  further,  as  to  real  actions,  below,  §  8. 


§  1.]  Supremacy  of  Curia  Regis.  59 

if  the  court  should  be  proved  to  have  failed  in  doing  right, 
the  suit  might  be  removed  into  the  county  court  by  pre- 
cept of  the  sheriff,  and  from  thence  again  by  writ  from  the  king 
into  the  Curia  Regis.  The  latter  appears  to  have  been  the  usual 
mode  of  bringing  a  writ  of  right  to  trial.^  Proceedings  were 
instituted  in  the  first  instance  in  the  branch  of  the  Curia  Regis 
called  after  Magna  Carta  the  Court  of  Common  Pleas  ^  only 
when  the  lord  gave,  or  was  supposed  to  have  given,  license  to 
the  tenant  to  bring  his  action  in  that  court  ^,  or  when  the  tenant 
held  directly  of  the  king  *. 

GLAJfviLL.     De  Legihus  et  Consuetudinihus  Regni  Angliae. 

Lib.  xii.  c.  25.  Praeterea  sciendum  quod  secundum  consue- 
tudines  regni  nemo  tenetur  respondere  in  curia  domini  sui 
de  aliquo  libei'o  tenemento  ^  suo  sine  praecepto "  domini  regis 
vel  ejus  capitalis  justiciae  . '' 

Lib.  i.  c.  5.  Cum  clamat  quis  domino  regi  aut  ejus  justiciis  ^ 
de  feodo  °  aut  de  libero  tenemento  suo,  si  fuerit  quei-ela  talis, 

'  Perhaps  in  consequence  of  Magna  Carta  (John)  c.  34  : — '  Breve  quod 
vocatur  "praecipe"  de  cetero  non  fiat  alicui  de  aliquo  tenemento  unde 
liber  homo  amittero  possit  curiam  suam.' 

^  '  Communia  placita  (suits  between  subject  and  subject)  non  sequantur 
curiam  nostram,  sed  teneantur  in  aliquo  loco  certo.'  (c.  17.)  From  this 
time  forward  the  Court  of  Common  Pleas  had  exclusive  jurisdiction  in  the 
case  of  all  real  actions. 

'  This  was  expressed  by  the  addition  at  the  end  of  the  writ  of  the  words 
'  Quia  dorainus  remisit  curiam  suam.'  See  Blackstone,  vol.  iii.  Appendix,  §  4. 

*  See  Blackstone,  iii.  p.  195  ;  Fitzherbert,  Natura  Brevium,  i.  pp.  1-5. 

'  The  word '  tenements '  now  becomes  the  technical  expression  for  things 
immoveable,  considered  as  the  subjects  of  property,  they  being  not '  owned,' 
but  '  holden.'  For  the  technical  meaning  of  '  lands,'  '  tenements,'  and 
'hereditaments,'  see  Blackstone,  book  ii.  chap.  2. 

^  The  wi-it  or  precept  addressed  by  the  king  to  the  sheriff  or  chief  lord 
as  the  case  might  be.  This  was  the  regular  mode  of  commencing  an  action 
at  law. 

^  As  to  the  office  and  functions  of  the  chief  justiciar,  see  Stubbs,  Select 
Charters,  pp.  16,  17,  and  Const.  Hist.  i.  p.  346. 

"  As  to  the  justices,  see  Stubbs,  Select  Charters,  p.  17. 

'  The  word  '  feodum '  has  now  lost  its  original  sense  of  land  granted 
to  be  held  as  a  benefice  opposed  to  land  granted  to  be  held  alodially :  see 


6o  JExtracts  from  Glanvill.  [chap.  ir. 

quod  debeat  vel  quod  dominus  rex  velit  earn  in  curia  sua  deduci 
tunc  is  qui  queritur  tale  breve  de  summonitione  habebit : — 

c.  6.  Rex  vicecomiti  ^  salutem.  Praecipe  A.  quod  sine  dila- 
tione  reddat  B.  unam  hidam  terrae  in  villa  ilia  unde  idem  B. 
queritur  quod  praedictus  A.  ei  deforceat :  et  nisi  fecerit,  sum- 
mone  eum  per  bonos  summonitores  quod  sit  ibi  coram  me  vel 
justiciariis  meis  in  crastino  post  octabas  clausi  Paschae  apud 
locum  ilium,  ostensunis  quare  non  fecerit.  Et  habeas  ibi  sum- 
monitores et  hoc  breve.  Teste  Ptanulpho  de  Glanvilla  apud 
Clarendon  ^. 

Lib.  xii.  c.  i.  Praedicta  quidem  placita  de  recto  directe  et  ab 
initio  veniunt  in  curia  domiui  regis,  et  ibi,  ut  dictum  est,  dedu- 
cuntur  et  terminantur.  Quaudoque  etiam  licet  ab  initio  non 
veniant  in  curia  domini  regis  quaedam  placita  de  recto,  veniunt 
tamen  per  translationem,  ubi  curiae  diversorum  dominorum 
probantur  de  recto  defecisse  :  tunc  enim  mediante  comitatu ' 
possunt  a  comitatu,  ex  diversis  causis  quae  superius  expositae 
sunt,  ad  capitalem  curiam  domini  regis  transferri. 

c.  2.  Cum  quis  itaque  clamet  aliquod  liberum  tenementum 
vel  servitiimi  tenendum  de  alio  per  liberum  servitium,  non 
poterit  inde  trahere  tenentem  in  placitum  sine  brevi  domini 
regis  vel  ejus  justiciarum ;  habebit  ergo  ad  dominum  suum,  de 
quo  idem  clamat  tenere,  breve  de  recto.  Quod,  si  placitum 
fuerit  de  terra,  tale  erit : — 

c.  3.  Rex  Comiti  W.  salutem.  Praecipio  tibi  quod  sine  dila- 
tione  teneas  plenum  rectum  N.  de  decem  carucatis  terrae  in 
Middleton  quas  clamat  tenere  de  te  per  liberum  servitium  feodi 
unius  militis  pro  omni  servitio  *,  vel  per  liberum  servitium  cen- 

above,  p.  50.    No  alodial  land  remained  in  England.    Feodum  or  fee  is  now 

always  used  in  its  secondary  sense  of  '  an  estate  of  inheritance,'  i.  e.  an 

interest  in  land  descendible  to  heirs.  (As  to  who  '  heirs  '  are,  see  below,  §  5.) 

*  As  to  the  office  of  the  sheriff,  see  Stubbs,  Select  Charters,  pp.  9,  14,  22. 

2  The  mode  of  trial  of  a  writ  of  right  forms  the  subject  of  the  remainder 
of  the  first  and  second  book  of  Glanvill.  His  account,  though  very  curi- 
ous in  reference  to  the  history  of  the  law  of  procedure,  has  no  bearing  on 
that  of  the  law  of  land.  The  cause,  when  ripe  for  trial,  was  decided  either 
by  the  duel,  or,  under  the  great  improvement  of  the  law  effected  by  an 
ordinance  of  Henry  II,  of  which  we  only  hear  in  Glanvill,  by  the  grand 
assize:  that  is,  by  the  verdict  of  twelve  milites  of  the  neighbourhood, 
chosen  by  four  other  milites  summoned  by  the  sheriff  for  the  purpose. 

3  For  county  courts  held  before  the  sheriff,  see  Stubbs,  Const.  Hist.  i. 
pp.  114,  393,  etc.  *  See  above,  p.  51- 


^2.]  Relation  of  Lord  and  Tenant.  6i 

turn  solidorum  per  annum  pro  omni  servitio ',  vel  per  liberum 
servitium  undo  duodecim  canicatae  terrae  faciunt  feodum  unius 
militis  pro  omni  servitio,  vel  quas  clamat  pertinere  ad  liberum 
tenemeutum  suum  quod  de  te  tenet  in  eadem  villa,  vel  in  Mor- 
tmie,  per  liberum  servitium,  etc.  vel  per  servitium,  etc.  vel  quas 
clamat  tenere  de  te  de  libero  maritagio^  M.  matris  suae,  vel 
in  liberam  bui'gagium  ^,  vel  in  liberam  eleemosynam  *,  vel  per 
liberum  servitium  eundi  tecum  in  exercitum  domini  regis  cum 
duobus  equis  ad  custum  suum  pro  omni  servitio,  vel  per  liberum 
servitium  inveniendi  tibi  unum  arbelastarium  in  exercitum  do- 
mini regis  per  quadraginta  dies  pro  omni  servitio,  quas  R.  filius 
W.  ei  deforciat.  Et  nisi  feceris,  Vicecomes  de  Northamptone 
faciat,  ne  amplius  inde  clamorem  audiam  pro  defectu  justiciae. 

c.  6.  Solent  autem  placita  ista  in  curiis  dominorum,  vel 
eorum  qui  loco  dominorum  habentur,  deduci,  secundum  rationa- 
biles  consuetudiues  ipsarum  curiarum ;  quae  tot  et  tam  variae 
sunt,  ut  in  scriptum  de  facili  reduci  non  possunt. 

§  2.  Relation  of  Lord  and  Free  Tenant. 

The  following  passages  state  the  substance  of  the  law  as  to 
the  relation  between  the  lord  and  his  freehold  tenant  and  their 
mutual  rights  and  duties.  This  branch  of  the  law  is  treated 
moi'e  elaborately  by  Bracton,  but  the  outline  here  traced  by 
Glanvill  remains  substantially  unaltered. 

The  tie  which  created  the  relation  of  lord  and  tenant,  at  all 
events  tenant  by  military  service,  was  homage.  Bracton  ^,  bor- 
rowing from  the  definition  of  ohligatio  by  the  Roman  lawyers ", 
defines  homage  as  ^  juris  vinculum  quo  quis  astringitur  ad  war- 
rantizanduon,  defendendum,  et  acquietandum  tenentem  suum  in 
seisina  versus  omnes  per  certum  servitium  in  donations  nomi- 

'  It  became  at  this  time  very  common  to  commute  services  due  for  the 
land  for  a  money  payment.  This  would  not  affect  the  tenure  of  the  lands. 
Whether  the  tenure  was  by  knight-service  or  in  socage  would  still  depend  on 
the  nature  of  the  services  in  respect  of  which  the  commutation  was  paid. 

'^  As  to  '  frank  marriage,'  see  below,  §  6,  note. 

^  As  to  burgage  tenure,  see  above,  p.  39,  and  Littleton,  lib.  ii.  c.  10. 
§§  162-171. 

*  As  to  libera  eleemosyna,  see  above,  p.  30,  and  Littleton,  lib.  ii.  c.  6. 
§§  133-142- 

^  Fol.  78  b.  *  See  Institutes  of  Justinian,  iii.  13. 


62  Extracts  from  Glanvill.  [chap.  ii. 

natum  et  expressum  ;  et  etiam  vice  versa  quo  tenens  re  obligatur 
at  astringitur  ad  fidein  domino  suo  servandum  et  servitium 
debitum  faciendum.'  In  the  same  passage  Bracton  gives  a  more 
detailed  statement  of  the  consequences  of  homage,  the  obligation 
it  imposes  on  lord  and  tenant,  and  of  the  modes  by  which  the  tie 
may  be  dissolved'.  This  however  belongs  so  entirely  to  the 
obsolete  portion  of  our  law  that  it  is  needless  to  pursue  the  sub- 
ject into  further  detail.  If  by  any  means,  such  as  escheat  for 
felony,  or  failure  of  heirs  ^,  or  repudiation  of  his  duties  as  lord, 
the  tie  was  dissolved  as  between  the  tenant  and  his  immediate 
lord,  the  intermediate  seignory  was  as  it  were  taken  away, 
and  the  relation  of  lord  and  tenant  arose  between  the  tenant  and 
the  superior  lord  of  whom  the  intermediate  lord  himself  had  held. 
The  superior  lord  could  not  in  this  case  refuse  to  accept  the 
homage  of  the  tenant,  who,  as  Bracton  more  than  once  says,  had 
all  along  been  '  tenens  suus,  quamvis  per  medium.'  In  the  same 
way,  if  the  tenant  alienated  the  whole  of  his  land  the  alienee 
would  be  tenant  of  the  lord  of  whom  the  land  had  been  held,  and 
he  would  be  compelled  to  receive  the  homage  of  the  alienee. 

Lib.  ix.  c.  I.  Praedictis  restat  continuandum  de  homagiis 
faciendis  et  releviis  recipiendis.  Mortuo  siquidem  patre  vel  alio 
quocunque  alicujus  antecessore,  tenetur  dominus  feodi  ab  initio 
recipere  homagium  recti  haeredis,  sive  fuerit  infra  aetatem  haeres 
ipse  sive  plenam  habuerit  aetatem,  dummodo  masculus  sit, 
Feminae  enim  nullum  homagium  facere  possunt  de  jure  ^,  licet 
plerumque  fidelitatem  *  dominis  suis  praestare  soleant.     Verun- 

•  See  Reeves,  i.  pp.  310-312.  2  ggg  below,  §  4. 

^  This  seems  to  have  been  changed  in  later  times.  Littleton  speaks  of  a 
woman  doing  homage  ;  lib.  ii.  c.  i.  §  87. 

*  '  Fealty  is  the  same  that  fidcUtas  is  in  Latin.  And  when  a  freeholder 
doth  fealty  to  his  lord  he  shall  hold  his  right  hand  upon  a  book  and  shall 
say  thus  :  Know  ye  this,  my  lord,  that  I  shall  be  faithful  and  true  unto 
you,  and  faith  to  you  shall  bear  for  the  lands  which  I  claim  to  hold  of 
you,  and  that  I  shall  lawfully  do  to  you  the  customs  and  services  which 
I  ought  to  do,  at  the  terms  assigned,  so  help  me  God  and  his  Saints.  And 
he  shall  kiss  the  book.  But  he  shall  not  kneel  when  he  maketh  his  fealty, 
nor  make  such  humble  reverence  as  is  aforesaid  in  homage.' — Littleton, 
Coke's  translation,  lib.  ii.  c.  2.  §  91. 


§  2.]  Feudal  Incidents,  63 

tamen  si  fiierint  maritatae,  mariti  earum  homagium  dominis  suis 
de  feodo  illarum  facere  debent.  Ita  dico  si  feoda  ilia  homagium 
debeant.  Sin  autem  haeres  masculus  fuerit  et  minor,  nullam 
de  jure  vel  de  ipso  haerede  vel  de  tenemento  suo  habere  debet 
custodiam  dominus  feodi,  donee  ipsius  haeredis  receperit  homa- 
gium ;  quia  generaliter  verum  est  quod  nullum  servitium  sive 
relevium  sive  aliud  potest  quis  ab  haerede,  sive  fuerit  major  sive 
minor,  exigere,  donee  ipsius  haeredis  receperit  homagium  de  tene- 
mento unde  servitium  habere  clamat.  Potest  autem  quis  plura 
homagia  diversis  dominis  facere  de  feodis  diversis  diversorum 
dominorum.  Sed  unum  eorum  oportet  esse  precipuum,  et  cum 
ligeancia  factum ;  illi  scilicet  domino  faciendum,  a  quo  tenet 
suum  capitale  tenementum  is  qui  homagium  facere  debet.  Fieri 
autem  debet  homagium  sub  hac  forma,  scilicet  ut  is  qui  homa- 
gium facere  debet,  ita  fiat  homo  domini  sui,  quod  fidem  illi 
portet,  de  illo  tenemento  unde  homagium  suum  praestat,  et  quod 
ejus  in  omnibus  terrenum  honorem  seiTet,  salva  fide  debita 
domino  regi  et  haeredibus  suis  \  Ex  hoc  liquet  quod  vassallus, 
non  potest  domiuum  suum  infestire,  salva  fide  homagii  sui, 
nisi  forte  se  defendendo,  vel  nisi  ex  praecepto  princijiis  cum 
eo  iverit  contra  domiiium  suum  in  exercitum  ^.  Et  generaliter 
nihil  de  jure  facere  potest  quis  salva  fide  homagii  quod  vertat  ad 
exhaeredationem  domini  sui  vel  ad  dedecus  corporis  sui.  Si  quis 
ergo  plura  homagia  pro  diversis  feodis  suis  fecerit  diversis 
dominis  qui  se  invicem  infestent ;  si  capitalis  dominus  ejus  ei 
praeceperit  quod  secum  in  propria  persona  sua  eat  contra  aliura 
dominum  suum,  oportet  eum  ejus  praecepto  in  hoc  obtemperare, 
salvo  tamen  servitio  alterius  domini  de  feodo  quod  de  eo  tenet. 
Patet  itaque  ex  praedictis,  quod  si  quis  aliquid  ad  exhaereda- 
tionem domini  sui  fecerit,  et  super  hoc  convictus  fuerit,  feodum 
quod  de  eo  tenet  de  jure  amittet  et  haeredes  ejus.  Idem  quoque 
erit  si  manus  violentas  quis  in  dominum  suum  injecerit  eum 
laedendo  vel  atroci  injuria  afficiendo,  et  hoc  fuerit  in  curia  versus 
eum  legitime  comprobatum.  Sed  utrum  in  curia  domini  sui 
teneatur  quis  se  defendere  versus  dominum  suum  de  talibus 
objectis,  quaero  ;  et  utrum  dominus  suus  possit  eum  ad  id  facien- 
dum distriugere  per  considerationem  curiae  suae  ^  sine  praecepto 

^  Compare  the  form  of  homage  given  in  Littleton,  lib.  i.  c.  lo.  §  85. 
The  ceremony  was  public,  in  the  court  of  the  county  or  hundred  or  in  the 
court  baron,  so  that  the  lord  might  have  witnesses  of  the  fact. 

*  See  above,  p.  28. 

^  The  technical  expression  for  the  judgment  of  a  court,  which  begins 
'  Therefore  it  is  considered,'  &c. 


64  Extracts  from  Glanvill.  [chap.  ii. 

domini  regis  vel  ejus  justiciarum,  vel  sine  brevi  domini  regis  vel 
ejus  capitalis  justiciae.  Et  quidem  de  jure  poterit  quis  hominem 
suum  per  judicium  curiae  suae  deducere  et  distringere  ad  curiam 
suara  venire. 


Sin  autem  non  poterit  quis  tenentes  suos  justiciare,  tunc 
demum  ad  curiae  refugium  erit  necessarium  decurrere.  Po- 
test autem  homo  liber  masculus  homagium  facere,  tarn  is  qui 
aetatem  habet,  quam  is  qui  infra  aetatem  est  tam  clericus  quam 
laicus.  Episcopi  vero  consecrati  homagium  facere  non  solent 
domino  regi  etiam  de  baroniis  suis.  Sed  fidelitatem  cum  jui'a- 
mentis  interpositis  ipsi  praestare  solent.  Electi  vero  in  episcopos 
ante  consecrationem  suam  homagia  sua  facere  solent. 


§  3.  Feudal  Incidents. 

The  following  extracts  detail  the  various  incidental  rights  and 
duties  appertaining  to  the  relation  of  lord  and  tenant  as  they 
existed  in  Glanvill's  time. 

(i)  Reliefs,  Aids, 

Lib.  ix.  c.  4.  Mutua  quidem  debet  esse  dominii  et  homagii 
fidelitatis  connexio,  ita  quod  quantum  homo  debet  domino  ex 
homagio,  tantum  illi  debet  dominus  ex  dominio  praeter  solam 
reverentiam.  Unde  si  aliquis  alicui  donaverit  aliquod  tenemen- 
tum  pro  servitio  et  homagio  suo,  quod  postea  alius  versus  eum 
diracionaverit,  tenebitiu'  quidem  dominus  tenementum  id  ei 
warrantizare  ^  vel  competens  escambium  ei  reddere.  Secus  est 
tamen  de  eo  qui  de  alio  tenet  feodum  suum  sicut  haereditatem 
suam,  et  unde  fecerit  homagium  ;  quia  licet  is  terram  illam 
amittat,  non  tenebitur  ei  dominus  ad  escambium.  Mortuo  vero 
patre  vel  antecessore  alicujus  ut  praedictum  est,  et  haerede  relicto 

'  The  doctrine  of  warranty  grew  to  great  complexity.  Generally  speak- 
ing it  consisted  in  the  obligation  on  the  part  of  the  donor  and  his  heirs  to 
defend  the  possession  of  the  donee  and  his  heirs.  The  donee  might  call 
upon  the  donor  to  fulfil  this  duty  in  case  of  a  suit  being  brought  against 
him  ;  this  was  called  '  vouching  to  wan-anty ; '  and  on  the  donor,  failing 
to  do  so  successfully,  the  donee  might  require  lands  of  equal  value  in 
exchange  for  those  he  had  lost. 


§  3']  Reliefs,  Aids.  6e^ 

(j^ui  infra  aetatem  sit,  nullum  jus  habet  dominus  feodi  in  custodia 
haeredis  vel  haereditatis,  nisi  prius  recepto  homagio  haeredis. 
Recepto  vero  homagio,  in  custodia  ipsius  domini  remanebit 
liaeres  ipse  cum  haereditate  sua  sub  forma  praedicta,  donee 
l)lenam  habuerit  aetatem.  Tandem  vero  eodem  ad  aetatem  per- 
veniente  et  facta  ei  haereditatis  restitutione,  quietus  erit  a  relevio 
ratione  custodiae.  Mulier  vero  haeres  alicujus  relicta,  sive 
plenam  habuerit  aetatem  sive  infra  aetatem  fuerit,  in  custodia 
domini  sui  remanebit,  donee  de  consilio  domini  sui  maritetur. 
Verum  si  infra  aetatem  fuerit,  quando  dominus  suus  in  custo- 
diam  illam  receperit,  tunc,  ipsa  maritata,  quieta  erit  haereditas 
ilia  a  relevio,  quantum  ad  se  et  quantum  ad  virum  suum.  Sin 
autem  habuerit  aetatem  eo  tempore,  licet  aliquamdiu  in  custodia 
domini  sui  reraaneat  antequam  maritetur,  relevium  tamen  dabit 
maritus  suus  qui  illam  in  uxorem  duxerit.  Semel  autem  prae- 
stitum  relevium  a  marito  alicujus  mulieris,  utrumque,  scilicet 
tam  maritum  quam  uxorem,  tota  vita  sua  de  relevio  ipsius  haere- 
ditatis acquietabit.  Quia  nee  mulier  ipsa  nee  secundus  maritus 
suus,  si  secundo  nupserit  praemortuo  viro  suo,  nee  primus 
maritus  suus  praemortua  uxore  sua,  terram  illam  iterum  relevi- 
abit.  Cum  autem  haeres  masculus  et  notus  haeres  aetatem  habens 
relinquatur,  in  sua  haereditate  se  tenebit,  ut  su^pra  dictum  est, 
etiam  invito  domino  ;  dum  tamen  domino  suo,  sicut  tenetur,  suum 
offerat  homagium  coram  probis  hominibus,  et  suum  rationabile 
relevium.  Dicitur  autem  rationabile  relevium  alicujus,  juxta 
consuetudinem  regui  de  feodo  miius  militis,  centum  solidi ;  de 
socagio  vero  quantum  valet  census  illius  socagii  per  unum  annum ; 
de  baroniis  vero  nihil  certum  statutum  est,  quia  juxta  volunta- 
tem  et  misericordiam  domini  I'egis  solent  baroniae  capitales  de 
releviis  suis  domino  regi  satisfacere  ^.  Idem  est  de  serjanteriis. 
Si  vero  dominus  ipse  nee  homagium,  nee  rationabile  relevium 
ipsius  haeredis  velit  recipere,  tunc  relevium  ipsum  salvo  custodiat, 
et  per  probos  homines  id  saepius  domino  suo  offerat.  Qui  si  uulla- 
tenus  id  recipere  voluerit,  tunc  haeres  ipse  de  domino  suo  domino 
regi  vel  ejus  justiciis  conqueratur,  et  tale  breve  inde  habebit. 
Praecipe  etc. 

*  Compare  the  law  of  Henry  I  given  in  Stubbs,  Select  Charters,  p.  97. 
'  Si  quis  baronum,  comitum  meorum  sive  aliorum  qui  de  me  teuent,  raor- 
tuus  fuerit,  haeres  suus  non  redimet  terram  suain  sicut  faciebat  tempore 
fratris  mei,  sed  justa  et  legitima  relevatione  relevabit  eam.  Similiter  et 
homines  baronum  meorum  justa  et  legitima  relevatione  relevabunt  terras 
suas  de  dominis  suis.'  The  amount  of  relief  payable  by  a  bai-on  was  fixed 
by  Magna  Carta,  c.  2.     See  Chapter  III.  §  i. 

F 


66  Extracts  from  Qlanvill.  [chap.  ii. 

c,  8.  Postquam  vero  conveuerit  inter  dominum  et  haere- 
clem  tenentis  sui  de  rationabili  relevio  dando  et  recipiendo, 
poterit  idem  haeres  rationabilia  auxilia  de  hominibus  suis  inde 
exigere,  ita  tamen  moderate  secundum  quantitatem  feodorum 
suorum  et  secundum  facultates,  ne  nimis  gravari  inde  videantur, 
vel  suum  contenementum  amittere.  Nihil  autem  certum  ^  sta- 
tutum  est  de  hujusmodi  auxiliis  dandis  vel  exigendis,  nisi  ut 
praedicta  forma  inviolabiliter  observetur.  Sunt  praeterea  alii 
casus  in  quibus  licet  domiuis  auxilia  similia,  sed  sub  forma  prae- 
scripta,  exigere  ab  hominibus  suis  :  veluti  si  filius  et  haeres 
suus  miles  fiat,  vel  si  primogenitam  filiam  suam  maritaverit. 
Utrum  vero  ad  guerram  suam  manutenendam  possint  domini 
hujusmodi  auxilia  exigere,  quaero  ^.  Obtinet  autem  quod  non 
possunt  ad  id  tenentes  distringere  de  jure,  nisi  quatenus  facere 
velint.  Possunt  autem  domini  tenentes  suos  ad  hujusmodi 
rationabilia  auxilia  reddenda  etiam  suo  jure,  sine  praecepto 
domini  regis  vel  ejus  capitalis  justiciae,  per  judicium  curiae  suae 
distringere  per  catalla  quae  in  ipsis  feodis  invenerint,  vel  per  ipsa 
feoda  si  opus  fuerit ;  ita  tamen  quod  ipsi  tenentes  inde  dedu- 
cantur  juste  secundum  considerationem  curiae  suae  et  consue- 
tudinem  rationabilem.  Si  ergo  ad  hujusmodi  auxilia  rationabilia 
reddenda  posset  aliquis  dominus  tenentes  suos  ita  distringere, 
multo  fortius  districtionem  eo  modo  licite  poterit  facere  pro 
ipso  relevio  suo,  vel  pi'o  necessario  servitio  suo  de  feodo  suo  sibi 
debito.  Verum  si  dominus  potens  non  fuerit  tenentem  suum 
pro  servitiis  suis  vel  consuetudinibus  justiciare  ;  tunc  decurren- 
dum  erit  ei  ad  auxilium  regis  vel  capitalis  justiciae,  et  tale  breve 
inde  habebit : — 

c.  9.  Hex  vicecomiti  salutem.  Praecipio  tibi  quod  justicies  ^ 
N.  quod  juste  et  sine  dilatione  faciat  R.  consuetudines  et  recta 
servitia  quae  ei  facere  debet  de  tenement©  suo  quod  de  eo  tenet 
in  ilia  villa,  sicut  rationabiliter  monstrare  poterit  eum  sibi  deberi, 
ne  oporteat  eum  amplius  inde  conqueri  pro  defectu  recti. 

(2)  Guardianship  in  Chivalry  or  Knight  Service. 

Lib.  vii.  c.  9.  Sunt  enim  quidam  haeredes,  de  quibus  con- 
stat eos  esse  majores,  alii  unde  constat  esse  minores,  alii  de 

*  See  Magna  Carta  (John),  c.  12. 

^  See  above,  p.  29,  and  below,  Chap.  III.  §  10. 

^  A  writ  of  justicies  was  in  the  nature  of  a  special  commission  to  the 
sheriff,  giving  him  authority  to  adjudicate  in  the  particular  case  in  the 
county  court. 


§  3']  Guardianshijo  in  Chivalry.  67 

quibus  dubium  est  utrum  sint  majores  au  minores.  Haeredes 
vero  majores  statim  post  decessum  autecessorum  suoruni  possunt 
se  tenere  in  liaereditate  sua,  licet  domini  j^ossint  feodum  suum 
cum  haerede  iu  manus  suas  capere  ^ ;  ita  tamen  moderate  id 
fieri  bebet,  lie  aliquam  disseisiuam  baeredibus  faciaut  :  possunt 
enim  haeredes,  si  opus  fuerit,  violentiae  dominorum  resistere, 
dum  tameu  parati  sunt  relevium  et  alia  recta  servitia  eis  inde 
facere.  Si  vero  constet  eos  esse  minores,  tunc  ipsi  haeredes 
teneutur  esse  sub  custodia  dominorum  suorum  donee  pleiiam 
habuerint  aetatem  (si  fueriut  haeredes  de  feodo  militari),  quod 
sit  post  vicesimum  et  uiiuni  annum  completum,  si  fuerit  haeres 
et  filius  militis  vel  per  feodum  militare  teueutis.  Si  vero  haeres 
et  filius  sokemanni  fuerit,  aetatem  habere  intelligitur  tunc  cum 
quiudecim  compleverit  annum  ^.  Si  vero  fuerit  filius  burgensis, 
aetatem  habere  tunc  intelligitur,  cum  dii-crete  sciverit  denarios 
uumerare  et  paiinos  ulnare,  et  alia  paterua  negotia  similiter 
exercere.  Pleuam  itaque  custodiam  habent  domini  filiorum  et 
haeredum  hominura  suorum  et  feodorum  suorum,  ita  quod 
plenam  inde  habent  dispositionem,  ut  in  ecclesiis,  in  custodiis 
ipsis  constitutis,  concedendis,  et  in  mulieribus  (si  quae  in  eorum 
custodiam  exciderint),  maritandis,  et  in  aliis  negotiis  dispo- 
nendis,  secundum  quod  propria  negotia  sua  disponere  solent. 
Nihil  tamen  de  liaereditate  de  jure  alieuare  possunt  ad  re- 
nianentiam  ^ ;  ita  tamen  quod  haeredes  ipsos  honorifice,  pro 
quantitate  haereditatis  interim  liabeant,  et  debita  etiam  defuncti 
pro  quantitate  haereditatis  et  temporis  quo  illis  custodia  depu- 
tatur,  acquietent ;  unde  et  de  debitis  autecessorum  de  jure 
respondere  tenentur.  Negotia  quoque  ipsorum  haeredum  agere 
possunt,  et  placita*  de  jure  eis  acquirendo  raovere  et  prosequi, 

^  There  was  a  distinction  between  wardship  of  the  lands  and  wardship 
of  the  body.  The  lord  was  entitled  to  both  except  when  the  infant's  father 
was  stUl  alive.  In  that  case  the  father  was  entitled  as  against  the  lord 
to  the  wardship  of  the  body.  This  carried  with  it  the  right  to  the  marriage 
of  the  infant.     See  Littleton,  lib.  ii.  c.  4 .  §  1 14. 

^  The  exact  age  seems  not  to  have  been  quite  settled  in  Bracton's 
time  (see  fol.  86),  but  in  the  time  of  Littleton  was  finally  fixed  at  four- 
teen ;  lib.  ii.  c.  5.  §  123. 

^  '  In  perpetuity.'  The  word  is  sometimes  used  by  Glanvill  to  express 
'  estate  of  inheritance.' 

*  Pleas,  suits,  placita  coronae  or  criminalia,  are  criminal  suits  as  opposed 
to  placita  civilia  or  civil  suits ;  communia  placita,  suits  between  subject 
and  subject.  Hence  the  Court  of  Common  Pleas.  See  Magna  Carta 
(John),  c.  17  ;  Stubbs,  Select  Cliartera,  p.  291. 

F  2 


68  Extracts  from  Glanvill.  [chap.  ii. 

si  emissa  fuerit  de  aetate  contra  minorem  exceptio.     Respondere 
autem  non  tenentur  pro  illis  nee  de  recto  nee  de  disseisina  nisi 

in  unico  casu 

Restituere  autem  tenentur  custodes  liaereditates  ipsis  haere- 
dibus  instauratas  et  debitis  acquietatas,  juxta  exigeutiam  tem- 
poris  custodiae  et  quantitatis  haereditatis  ^.  Si  vero  dubium 
t'uerit  utruni  fuerint  haeredes  majoi'es  an  minores ;  tunc  procul 
dubio  domini  tani  haeredes  quam  haereditates  in  custodia 
habebunt,  donee  aetas  rationabiliter  probetur  per  legales  homines 
de  vicineto  et  per  eorum  sacramentum. 

c.  lo.  Si  vero  plures  habuerint  dominos  ipsi  haeredes  sub 
custodia  constituti,  capitales  eorum  domini,  id  est,  illi  quibus 
ligeantiam  debeut,  sicut  de  primis  eorum  feodis,  eorum  habebunt 
custodiam ;  ita  quod  de  caeteris  feodis  relevia  et  aha  recta 
servitia  dominis  ipsorum  feodorum  facere  tenentur.  Et  sic 
custodia  eis  per  totum  sub  forma  praescripta  remanebit.  No- 
tandum  tameu  quod  si  quis  in  capite  de  domino  rege  tenere 
debet,  tunc  ejus  custodia  ad  dominum  regem  plene  pei'tinet, 
sive  aUos  dominos  habere  debeat  ipse  haeres  sive  non ;  quia 
dominus  rex  nullum  habere  potest  parem  multo  minus  supe- 
riorem.  Veruntameu  ratione  burgagii  tantum  non  praefertur 
dominus  rex  aliis  in  custodiis.  Si  vero  dominus  rex  aliquam 
custodiam  alicui  commiserit "-,  tunc  distinguitur  utrum  ei  cus- 
todiam pleno  jure  commiserit,  ita  quod  nullum  eum  inde  reddere 
compotum  oporteat  ad  scaccarium,  aut  aliter.  Si  vero  ita  plene 
ei  custodiam  commiserit,  tunc  poterit  ecclesias  vacantes  donare, 
et  alia  necrotia  sicut  sua  recte  exercere  ^. 


-o^ 


(3)  Guardianship  in  Socage, 

Lib.  vii.  c.  II.  Haeredes  vero  sokemannorum,  mortuis  ante- 
cessoribus  suis,  in  custodia  consanguineorum  suorum  propin- 
(juiorum  erunt ;  ita  tamen  quod  si  haereditas  ipsa  ex  parte 
patris  descenderit,  ad  consanguineos  ex  parte  matris  descen- 
dentes  custodia  ipsa  referatur.  Sin  autem  ex  parte  matris 
haereditas  ipsa  descenderit,  tunc  ad  consanguineos  paternos 
custodia  pertinet.     Nunquam  enim   custodia   alicujus  de   jure 

^  But  the  guardian  in  chivalry  was  not  obliged  to  account  for  the  mesne 
profits. 

^  See  as  to  the  grant  or  sale  of  wardship  by  the  king,  the  provisions  of 
Magna  Carta  (John),  c.  4  ;  and  see  Littleton,  lib.  ii.  c.  4.  §  116. 

^  See  further  as  to  guardianship  in  chivalry,  below.  Chap.  III.  §  2. 


§  3- J  Marriage  of  Female  Tenants.  69 

alicui  remanet,  de  quo  liabeatur  suspicio  quod  possit  vel  velit 
aliquod  jus  in  ipsa  haereditate  clamare  \ 


(4)  Marriage  of  Female  Tenants. 

Lib.  vii.  c.  12.  Mulier  vero  vel  mulieres,  si  haeredes  alicujus 
remanserint,  in  custodia  dominorum  suorura  remanent.  Quae, 
si  infra  aetatem  fuerint,  in  custodia  erunt,  donee  plenariam 
liabent  aetatem "  :  et  cum  liabuerint  aetatem,  tenetur  dominus 
earum  eas  maritare,  singulas  cum  suis  rationabilibus  portionibu?. 
Si  vero  majores  fuerint,  tunc  quoque  in  custodia  dominorum 
puorum  remauebuut,  donee  per  consilium  et  dispositionem 
dominorum  maritentur.  Quia  sine  dominorum  dispositione  vel 
assensu,  nulla  mulier,  haeres  terrae,  maritari  potest  de  jure 
et  consuetudine  regni.  Unde  si  quis  filiam  vel  filias  tantum 
habens  haeredem  illam  vel  illas  in  vita  sua  sine  assensu  domini 
sui  maritaverit,  inde  juste  secundum  jus  et  consuetudinem 
regni  perpetuo  exhaeredatur,  ita  quod  inde  de  caetero  nihil 
recuperare  poterit  nisi  ^qv  solam  misericordiam ;  et  hoc  ea 
ratione,  quia  cum  maritus  ipsius  mulieris  haeredis  alicujus 
homagium  de  tenemento  illo  facei^e  tenetur  ipsi  domino,  requi- 
renda  est  ipsius  domini  ad  id  faciendum  voluntas  et  assensus ; 
ne  de  inimico  suo,  vel  alio  modo  minus  idonea  persona,  homa- 
gium  de  feodo  suo  cogatur  recipere  ^.  Verum  si  quis  licentiam 
quaerit  a  domino  suo  filiam  suam  et  haeredem  alicui  maritandi, 
tenetur  dominus  aut  consentire,  aut  justam  causam  ostendere 
quax'e  consentire  non  debeat ;  aliter  enim  etiam  contra  ipsius 
voluntatem  poterit  mulier  ipsa  de  consilio  patris  sui  et  pro 
voluntate  libere  maritari 

*  See  as  to  the  rights  and  duties  of  guardian  in  socage,  Littleton,  lib.  ii. 
c.  5.  §  123.  When  the  heir  arrives  at  the  age  of  fourteen,  he  may  oust 
the  guardian,  and  call  upon  him  to  render  an  account  of  the  issues  and 
profits  of  the  land.  If  the  guardian  has  married  the  heir  he  is  bound  to 
account  for  the  value  of  the  marriage.  The  law  is  unaltered  in  these 
respects  at  the  present  day,  except  that  a  new  power  of  appointing  a 
guardian  by  the  will  of  the  father  is  given  by  1 2  Car.  II,  c.  24.  s.  8.  See 
below,  Chap.  IX. 

^  This  was  fourteen,  extended,  so  far  as  relates  to  the  right  of  the  lord 
to  hinder  a  marriage,  by  the  Statute  of  West.  I,  c.  22,  to  sixteen.  Littleton, 
lib.  ii.  c.  4.  §  103. 

^  In  Bracton's  time  this  strictness  was  somewhat  relaxed  (fol.  88),  and 
by  the  Statute  of  Morton,  20  Hen.  Ill,  cc.  6,  7,  a  definite  penalty  was 
imposed. 


70  Extracts  fro7n  GlanviU.  [chap.  ii. 

Si  seniel  legitime  nuptae  fuerint,  tunc,  si  viduae  factae  fuerint, 
postmodum  non  tenebuutur  iterum  sub  custodia  dominorum 
esse  ;  licet  teneantur  assensum  eorum  requirere  in  se  maritandis 
praedicta  ratione  ;  nee  etiam  tunc  per  earum  incontiuentiara 
haereditatem  amitteiit '. 


§  4.  Escheat  and  Foi'feiture. 

The  law  of  escheat  for  failure  of  heirs  remains  in  substance 
at  the  present  day  as  it  is  stated  in  the  following  passage,  the 
practical  difference  being  that,  as  it  is  but  comparatively  seldom 
the  case  at  the  present  day  that  freehold  lands  are  held  of  any 
known  mesne  lord,  escheat  on  failure  of  heirs  of  a  freeholder 
usually  is  to  the  Crown  as  lord  paramoimt. 

Escheat  was  formerly  divided  under  the  heads  of  escheat 
propter  defectum  sanguinis  (failure  of  heirs),  and  escheat  propter 
delictum  tenentis  (for  the  felony  of  the  tenant)  ^ ;  the  latter 
kind  of  escheat  however  has,  together  with  forfeiture  for  the 
same  causes,  been  abolished  by  33  and  34  Vic.  c.  23. 

Lib.  vii.  c.  17.  Ultimi  haeredes  aliquorum,  sunt  eorum 
domini.  Cum  quis  ergo  sine  certo  haerede  moritur,  quemad- 
modum  sine  filio,  vel  filia,  vel  sine  tali  haerede  de  quo  dubiuin 
sit  ipsum  esse  propinquiorem  haeredem  et  rectum,  possunt  et 
Solent  domini  feodorum  feoda  ilia  tanquam  escaetas  in  manus 
suas  capere  et  retinere ;  quicunque  siut  domini,  sive  rex,  sive 
alius.  Praeterea  vero  si  quis  veniens  dicat  se  inde  haeredem 
rectum,  si  per  misericordiam  domini  sui,  vel  per  praeceptum 
domini  regis,  hoc  impetrare  poterit,  inde  placitabit,  et  sic,  si 
([uod  jus  inde  habuerit,  diracionare  poterit  ;  ita  tamen  quod 
interim  terra  ilia  in  manu  domini  feodi  remaneat :  quia  quo- 
tienscunque  dubitaverit  aliquis  dominus  de  haerede  tenentis 
sui,  utrum  sit  rectus  haeres  an  non,  terram  illam  tenere  poterit 
donee  hoc  ei  legitime  constiterit.  Idem  quoque  dictum  est 
supra  de  haerede  ubi  dubium  sit  an  sit  major  an  minor  :  in 
hoc  tamen  est  differentia,  quod  in  uno  casu  intelligitur  interim 
haereditas  ilia  quasi  escaeta  ipsius  domini  ;  in  alio  vero  casu, 
non  intelligitur  esse  sua,  nisi  de  custodia.  Sin  autem  nullus 
appareat  qui  haereditatem  ipsam  tanquam  haeres  requirat,  tunc 

'  See  further  on  the  subject  of  'marriage,'  below,  Chap.  III.  §  3. 
^  See  Blackstone,  book  ii.  chap.  15.  . 


§5-]  Descent  of  an  Estate  of  Inheritance.  71 

ipsi  domino  remanet  haereditas  ipsa  escaeta  ad  remanentiain  ; 
ita  quod  de  ilia  disponere  potest,  sicut  de  sua  propria,  ad 
libitum  suum.  Praeterea  si  quae  mulier,  ut  haeres  alicujus 
in  custodiam  domini  sui  devenerit ;  si  de  corpora  suo  foi  is- 
fecerit,  haereditas  sua  domino  suo  pro  delicto  ipsius  remanet 
excaeta.  Praeterea  si  quis  de  felouia  convictus  fuerit,  vel  con- 
fessus  in  curia,  eo  per  jus  regni  exhaeredato,  terra  sua  domino 
suo  remanet  escaeta.  Notaudum  quod  si  quis  in  capite  de 
domino  rege  tenuerit,  tunc  tarn  terra  quam  omnes  res  mobiles 
suae,  et  catalla  penes  quemcunque  inveniantur,  ad  opus  domini 
regis  capientvxr  sine  omni  recuperatione  alicujus  haeredis.  Sin 
autem  de  alio  quam  de  rege  tenuerit  is  qui  utlagatus  est\ 
vel  de  felonia  convictus,  tunc  quoque  omnes  res  suae  mobiles 
regis  erunt.  Terra  quoque  per  unum  annum  remanebit  in 
manu  domini  regis,  elapso  autem  anno,  terra  eadem  ad  rectum 
dominum,  scilicet  ad  ipsum  de  cujus  feodo^est,  i-evertetur, 
veruntamen  cum  domorum  subversione  et  arborum  extirpatione. 
Et  generaliter  quotiescunque  aliquis  aliquid  fecerit  vel  dixerit 
in  curia,  propter  quod  per  judicium  curiae  exhaeredatus  fuerit, 
haereditas  ejus  ad  dominum  feodi  de  quo  ilia  tenetur  tanquam 
escaeta  solet  reverti.  Forisfactura  autem  filii  et  haeredis  ali- 
cujus patrem  non  exhaeredat  neque  fratrem,  neque  alium  quam 
seipsum.  Praeterea  si  de  furto  fuerit  aliquis  condemuatus,  res 
ejus  mobiles  et  omnia  catalla  sua  vicecomiti  provinciae  remanere 
solent,  terram  autem,  si  qua  fuerit,  dominus  feodi  recuperabit 
statim,  non  expectato  anno.  Cum  quis  vero  per  legem  terrae 
fuerit  utlagatus,  et  postmodum  beneficio  principis  paci  resti- 
tutus,  non  poterit  ea  ratione  haereditatem,  si  quam  habuerit 
ille  vel  haeredes  sui,  versus  dominum  suum  (nisi  ex  misericordia 
ipsius  domini  et  beueficio)  recuperare ;  forisfacturam  autem  et 
utlasariam  solet  dominus  rex  damnatis  remittere,  nee  tamen 
aliena  jura  ideo  quaerit  infringere. 

§  5.  Descent  of  an  Estate  of  Inheritance. 

The  great  characteristic  of  a  feodum  in  the  second  sense  of 
the  term  as  an  estate  of  inheritance^  is  its  capacity  of  descending 
to  heirs,  Avhether  lineal  descendants   or    collaterals.     We    have 

^  'Utlagatus,'  'outlawed.'  The  law  of  forfeiture  in  the  case  of  outlawry- 
is  not  affected  by  the  Statute  33  and  34  Vic.  c.  23.  See  for  process  of 
outlawry,  Blackstone,  iii.  283. 

^  See  above,  p.  50. 


72  JExfradsfrom  GlanviU.  [chap.  ii. 

not  as  yet  arrived  at  the  distinction  between  different  estates  of 
inheritance,  between  estates  in  fee  simple  and  estates  in  fee  tail. 
The  following  passage  contains  in  outline  a  statement  of  the  law 
of  descent  which  prevailed  till  it  was  recast  by  the  Inheritance 
Act  of  1833  (3  and  4  Will.  IV,  c.  106).  The  law  as  to  the  descent 
of  socage  estates,  as  stated  in  this  passage,  had  become  obsolete 
in  Bracton's  time,  wlien  the  same  rules  as  to  descent  prevailed  in 
lands  held  in  socage  and  by  knight  service.  The  equal  division 
of  lands  amongst  all  the  sons  only  continued  in  the  county  of  \ 
Kent,  where  it  is  still  the  rule.  The  point  as  to  the  respective 
ricrhts  of  the  younger  son  and  a  grandson  (child  of  a  predeceased 
elder  son)  was  by  Bracton's  time  settled  by  the  adoption  of  the 
general  principle  that  the  issue  represents  the  ancestor  in 
infinitum  ^. 

Lib.  vii.  c.  3.      Haeredura  autem  alii  sunt  proximi,  alii  sunt 
remotiores  ;  proximi  haeredes  alicujus  sunt  quos  ex  suo  corpore 
procreaverit,  ut  filius  vel  filia.     Quibus  deficientibus^  vocantur" 
haeredes    remotiores,  scilicet  nepos  vel  neptis  ex  filio  vel  filia 
recta  linea  descendens,  in  infinitum.     Item  frater  et  soror,  et  ex 
illis  ex  transverso  descendentes.     Item  avunculus,  tarn  ex  parte 
patris  quam  ex  parte  matris,  et  matertera  similiter,  et  ex  illis 
descendentes.     Cum  quis  ergo  haereditatem  habens  moriatur,  si 
unicum  filium  haeredem  habuerit,  indistincte  verum  est  quod 
filius  ille  patri  suo  succedit  in  toto.     Si  plures  reliquerit  filios, 
tunc  distinguitur  utrum  ille  fuerit  miles,  sive  per  feodum  mihtare 
tenens,   aut  liber  sokemannus.      Quia  si  miles  fuerit,  vel   per 
militiara  tenens,  tunc  secundum  jus  regni  Angliae  primogenitus 
filius  patri  succedit  in  totum^ ;  ita  qaod  nullus  fratrum  suorum 
partem  inde  de  jure  petere  potest.     Si  vero  fuerit  liber  soke- 
mannus, tunc  quidem  dividetur  haereditas  inter  omnes  filios,  quot- 
quot  sunt,  per   partes  aequales,  si  fuerit  socagium  illud  anti- 
quitus  divisum,  salvo  tamen  capitali  mesuagio  primogenito  filio 
pro  dignitate    aesneciae  suae  ;   ita    tamen  quod   in   aliis  rebus 
satisfaciet  aliis  ad   valentiam.     Si  vero    non  fuerit   antiquitus 

1  See  Bracton,  64  b. 

2  Notice  the  influence  of  the  phraseology  of  Roman  law.     This  expres- 
sion was  properly  applied  to  the  action  of  the  praetor.    See  Just.  Inst.  iii.  5. 

3  There  is  no  evidence  as  to  the  time  when  or  the  mode  in  which  this 
change  was  introduced.     See  above,  p.  38. 


§5-]  Descent  of  an  Estate  of  Inheritance.  7:5 

divisum,  tunc  primogenitus  secundum  quorundam  cousuetudineni. 
totam  liaereditatem  oljtinebit,  secundum  autem  quorundam  con- 
suetudincm  postnatus  filius  haeres  est\  Item  si  filiam  tantum 
unam  reliquerit  quis  haeredem,  tunc  id  obtinet  indistincte  quod 
de  filio  dictum  est.  Sin  autem  plures  filias,  tunc  quidcm  indis- 
tincte  inter  ipsas  dividetur  haereditas,  sive  fuerit  miles,  sive 
sokemannus  pater  earum  ;  salvo  tamen  primogenitae  filiae  capi- 
tali  mesuagio  sub  forma  praescripta.  Notandum  autem  quod  si 
quis  fratrum  vel  sororum,  inter  quos  dividitur  haereditas,  sine 
haerede  de  corpore  sue  moriatur,  tunc  ilia  portio,  quae  defuncti 
erat,  inter  caeteros  superstites  dividetur.  Maritus  autem  pri- 
mogenitae filiae  homagium  faciat  capitali  domino  de  toto  feodo. 
Teneutur  autem  postnatae  filiae,  vel  eainim  mariti,  servitium 
suum  de  suo  tenemento  capitali  domino  facere  per  manum  pri- 
mogenitae vel  ejus  mariti.  Nullum  tamen  homagium  vel  etiam 
fidelitatem  aliquam  tenentur  mariti  postnatarum  filiarum  niarito 
primogenitae  filiae  inde  facere  in  vita  sua,  nee  earum  haeredes 
primi  vel  secundi  :  tertii  vero  haeredes  ex  postnatis  filiabus 
exeuntes,  secundum  jus  regni  homagium  tenentur  facere  de  suo 
tenemento  haeredi  filiae  primogenitae  et  rationabile  relevium. 
Praeterea  sciendum  est  quod  mariti  mulierum  quarumcunque, 
nihil  de  haereditate  uxorum  suarum  donare  possunt  sine  consensu 
haeredum  suorum,  vel  de  jure  ipsorum  liaeredum  aliquid  remittere 
possunt  nisi  in  vita  sua  ^.  Si  vero  filiura  habuerit  quis  haeredem 
et  praeterea  filiam  habuerit  vel  filias,  filius  ipse  succedit  in 
totum  :  unde  eontingit  quod  si  quis  plures  habuerit  uxores  et 
ex  quolibct  filiam  vel  filias,  extremo  autem  ex  postrema  unicuni 
filium  ;  ille  filius  solus  obtinet  haereditatem  patris ;  quia  genera- 
liter  verum  est  quod  mulier  nunquam  cum  masculo  partem  capit 
in  haereditate  aliqua ;  nisi  forte  aliud  speciale  fiat  in  aliqua 
civitate,  et  hoc  per  longam  consuetudinem  ejusdem  civitatis.  Si 
vero  habuerit  quis  plures  uxores  et  ex  qualibet  earum  filiam  vel 
filias,  omnes  filiae  erunt  pares  ad  haereditatem  patris,  eodeni 
modo  ac  si  omnes  essent  ex  eadem  matre.  Cum  quis  autem 
moriatur  sine  haerede  filio  vel  filia,  si  habuerit  nepotes  vel  neptes 
ex  filio  vel  filia,  tunc  quidem  indubitanter  succeduut  ipsi  eodem 
modo  quo  predeterminatum  est  supra  de  filio  vol  filiabus,  et  sub 
eadem  distinctione.    Illi  enim  qui  recta  linea  descendunt,  semper 

'  As  to  borough  Euglish,  see  Blackstone,  ii.  83  ;  above,  p.  39. 

^  The  husband  by  the  marriage  only  acquires  an  estate  in  his  wife's 
lands  during  the  life  of  the  wife.  This  estate  in  certain  events  (death  of 
wife  having  had  issue  born  alive)  is  enlarged  into  an  estate  by  the  '  curtesy  ' 
of  England  (per  legena  Angliae),  i.  e.  an  estate  for  the  husband's  own  life. 


74  'Extracts from  Glanv'ill.  [chap.  ii. 

illis  prefervintur  qui  ex  transverse  veniunt.  Cum  quis  autem 
moriatur  habens  filium  postnatum,  et  ex  primogenito  filio  prae- 
mortuo  nepotem,  magna  quidem  juris  dubitatio  solet  esse,  uter 
illorum  preferendus  sit  alii  in  ilia  successione,  scilicet  utrum  filius 
an  nepos.  Quidam  enim  dicere  volebant  filium  postnatum  recti- 
orem  esse  haeredem  quam  nepotem  talem,  ea  videlicet  ratione,  quia 
filius  pi'imogenitus  cvim  mortem  patris  non  expectaret  nee  expec- 
tavit  quousque  haeres  ejus  esset,  et  ita  cum  postnatus  filius  super- 
viveret  tam  fratrem  quam  patrem,  recte  ut  dicunt  patri  succedit. 
Aliis  vero  visum  est  nepotem  talem  de  jure  avunculo  suo  esse 
praeferendum.  Cum  enim  nepos  ille  ex  filio  primogenito  ex- 
ierit,  et  de  corpore  suo  exstiterit  haeres  in  totum  jus  quod  pater 
suus,  si  adhuc  viveret,  haberet,  ipse  patri  suo  succedere  debet. 
Tta  dico  si  pater  suus  non  fueiit  ab  avo  suo  forisfamiliatus,  etc. 

c.  4.  Deficientibus  autem  hiis  qui  recta  linea  descendunt,  tunc 
f'rater  vel  fratres  succedent^ :  aut  si  non  reperiantur  fratres,  vocan- 
dae  sunt  sorores;  quibus  praemortuis  eorum  liberi  vocantur  ;  post 
lios  vero  vocantur  avunculi  et  eorum  liberi ;  postremo  mater- 
terae  et  earum  liberi ;  habita  et  observata  distinctione  superius 
praenotata,  inter  filios  militis  et  filios  sokemanni  et  nepotes  simi- 
liter ;  habita  quoque  distinctione  inter  masculos  et  feminas. 

c.  16.  Quaeri  potest  de  bastardo,  qui  nullum  haeredem  habere 
potest,  nisi  de  corpore  suo  habuerit  haeredem. 


§  6.  Alienation. 

The  following  passage  shows  that  the  power  of  a  tenant  in 
fee  simple  to  alienate  his  land  was  subject  to  certain  restrictions 
in  favour  of  his  heir.  There  is  no  trace  in  this  passage  of 
restraint  on  alienation  in  order  to  protect  the  interest  of  the 
lords,  a  principle  which  was  probably  of  later  introduction'. 

It  has  before  been  seen  that  both  absolute  freedom  of,  and 
definite  restrictions  upon,  alienation  might  be  created  by  the  in- 

'  The  Inheritance  Act,  1833  (3  and  4  Will.  IV,  c.  106),  has  introduced 
the  important  alteration  in  the  law  of  descent  that  next  after  lineal 
descendants  the  inheritance  shall  go  to  the  nearest  lineal  ancestor.  This 
has  based  the  succession  of  collaterals  on  a  new  princi23le.  They  now  take, 
not  as  before  directly  from  the  person  last  seised,  but  as  representing  the 
common  ancestor. 

2  See  below,  Chap.  III.  §  13. 


§  6.]  Alienation.  y^ 

strument  evidencing  the  grant ;  in  the  absence  of  any  such  evi- 
dence, according  to  tlie  older  customary  law,  the  property  of  the 
family  could  not  be  wholly  alienated  ^  This  passage  shows 
that  traces  of  this  old  customary  law  prevailed  in  the  time  of 
Henry  II.  After  this  reign,  questions  as  to  the  right  of  aliena- 
tion depend  not  on  the  duties  of  the  freeholder  towards  his  heir, 
but  on  his  duties  towards  his  lord. 

Lib.  vii.  c.  i.  In  alia  enim  acceptione  accipitur  dos  secun- 
dum leges  Romanas ;  secundum  quas  proprie  appellatur  dos,  id 
quod  cum  muliere  datur  viro,  quod  vulgariter  dicitur  marita- 
gium^.  Potest  itaque  quilibet  lil)er  homo,  terram  habens,  quan- 
dam  partem  terrae  suae  cum  filia  sua  vel  cum  aliqua  alia  qualibet 
muliere,  dare  in  maritagium,  sive  habuerit  haeredem  sive  non  ; 
velit  haeres  si  liabuerit  haeredem,  sive  non  velit ;  immo  eo  et 
contradicente  et  reclamante.  Quilibet  etiam,  cuicunque  voluerit, 
potest  dare  quandam  partem  sui  liberi  tenementi  in  remunera- 
tionera  servitii  sui  vel  loco  religioso  in  eleemosynam,  ita  quod  si 
donationem  illam  seisina  fuerit  secuta,  perpetuo  remanebit  illi 
eui  donata  fuerit  terra  ilia  et  haeredibus  suis,  si  jure  haeredi- 
tario  fuerit  ei  concessa.  Si  vero  donationem  talem  nulla  sequuta 
fuerit  seisina,  nihil  post  mortem  donatoris  ex  tali  donatione 
contra  voluntatem  haeredis  efficaciter  peti  potest^;  quia  id  intelli- 
gitur  secundum  consuetam  regni  iuterpretatiouem   potius   esse 

^  See  law  of  Heniy  I,  quoted  in  Reeves,  i.  p.  78,  see  below,  Chap.  Ill,  §  13. 

-  Frank  marriage;  see  lib.  vii.  c.  18.  '  Liberum  dicitur  maritagium 
quando  aliquis  liber  homo  aliquam  partem  terrae  suae  dat  cum  aliqua 
muliere  alicui  in  maritagium,  ita  quod  ab  omni  servitio  terra  ilia  sit  quieta, 
et  a  se  et  haeredibus  suis  versus  capitalem  dominum  acquietanda.  Et 
in  hac  quidem  libertate  ita  stabit  terra  ilia  usque  ad  tertium  haeredem, 
nee  interim  tenebuntur  haeredes  inde  facere  aliquod  homagium :  post  ter- 
tium vero  haeredem  ad  debitum  servitium  terra  ipsa  revertetur  et  homao-ium 
inde  capietur. — Cum  quis  itaque  terram  aliquam  cum  uxore  sua  in  marita- 
gium ceperit,  si  ex  eadera  uxore  sua  haeredem  habuerit  filium  vel  filiam 
clamantem  et  auditum  infra  quatuor  parietes,  si  idem  \ar  usorem  suam 
supervixerit,  sive  vixerit  haeres  sive  non,  illi  in  vita  sua  renianet  marita- 
gium illud,  post  mortem  vero  ipsius  ad  donatorem  vel  ejus  haeredes  est 
reversurum.  Sin  autem  ex  uxore  sua  nunquam  habuerit  haeredem,  tunc 
statim  post  mortem  uxoris  ad  donatorem  vel  haeredes  ejus  revertetur  mari- 
tagium.' In  later  times  estates  in  frank  marriage  came  to  be  regarded  as 
a  particular  kind  of  estates  in  special  tail.  See  Coke  upon  Littleton, 
lib.  i.  c.  2.  §  17. 

*  For  without  livery  of  seisin  no  estate  would  have-  passed. 


76  Extracts  from  Glanvill.  [chap.  ii. 

nuda  promissio  quam  aliqua  vera  promissio  Vel  donatio.  Licet 
autem  ita  generaliter  cuilibet  de  terra  sua  rationabilem  partem 
pro  sua  voluntate,  cuicunque  voluerit,  libere  in  vita  sua  donare ; 
in  extremis  tamen  agenti  non  est  cuiquam  hactenus  permissum' ; 
quia  possit  tunc  immodica  fieri  haereditatis  distributio,  si  fuisset 
hoc  permissum  illi  qui  fervore  passionis  instantis  et  memoriam 
et  ratiouem  amittit,  quod  non  nuiiquam  evenire  solet ;  unde  pre- 
sumeretur  quod  si  quis  in  infirmitate  positus  ad  mortem,  distri- 
buere  cepisset  terram  suam,  quod  in  sanitate  sua  minime  facere 
voluisset,  quod  potius  proveniret  illud  ex  furore  animi  quam  ex 
mentis  deliberatione.  Posset  tamen  hujusmodi  donatio  in  ultima 
voluntate  alicui  facta  ita  tenere,  si  cum  consensu  haeredis  fieret 
et  ex  suo  consensu  confirmaretur.  Cum  quis  autem  de  terra 
sua  in  maritagium  vel  alio  raodo  donat,  aut  habet  haereditatem 
tantum,  aut  questum  tantum^  aut  haereditatem  et  questum. 
Si  haereditatem  tantum,  poterit  quidem  ex  eadem  haereditate 
quandam  partem  donare,  ut  dictum  est,  cuilibet  extraneo  cui- 
cunque voluerit.  Si  autem  plures  habuerit  filios  mulieratos  ^, 
non  poterit  de  facili  praeter  consensum  haeredis  sui  filio  suo 
postnato  de  haereditate  sua  quantamlibet  partem  donare :  quia 
si  hoc  esset  permissum,  accideret  inde  frequens  prius  natorum 
filiorum  exhaeredatio,  propter  majorem  patrum  affectionem  quam 
saepe  erga  postnatos  filios  suos  habere  solent.  Sed  numquid  filio 
suo  bastai'do  potest  quis  filium  et  haeredem  habens,  de  haeredi- 
tate sua  donare  1  Quod  si  verum  est,  tunc  melioris  conditionis 
est  in  hoc  bastai'dus  filius  quam  mulieratus  postnatus ;  quod 
tamen  verum  est.  Si  vero  questum  tantum  liabuei-it  is  qui 
partem  terrae  suae  donare  voluerit,  tunc  quidem  hoc  ei  licet,  sed 
non  totura  questum,  quia  non  potest  filium  suum  haeredem 
exhaeredare.  Veruntamen  si  nullum  haeredem  filium  vel  filiam 
ex  corpore  suo  procreaverit,  poterit  quidem  ex  questu  suo  cui- 
cunque voluerit  quandam  partem  donare,  sive  totum  questum 
haereditabiliter.  Ita  quod  si  iude  seisitus  fuerit  is  cui  donatio 
ilia  facta  fuerit  in  vita  donatoris,  non  poterit  aliquis  haeres 
remotior  donationem  illam  irritare.  Potest  itaque  quilibet  sic 
totam  questum  donare  in  vita  sua,  sed  nullum  haeredem  iude 

1  This  restriction  upon  power  of  disposing  of  lands  by  will  is  a  lunita- 
tion  of  the  usual  freedom  of  alienation  of  privately-owned  lands  enjoyed 
before  the  Conquest. 

-  The  contrast  is  here  between  land  inherited  and  land  acquired  by  gift 
or  purchase. 

^  i.  e.  sons  born  in  lawful  wedlock. 


§  7-1  ^  i'^'^^  of  Lauds.  77 

facere  potest,  neque  collegium  ^,  neque  aliquem  hominein  ;  quia 
solus  Deus  haeredem  facere  potest  non  homo.  Sin  autem  et 
haereditatem  et  questum  habuerit  :  tunc  indistincte  verum  est 
([uod  potent  de  questu  suo  quantamlibet  j)artem,  sive  totuni, 
cuicunque  volueiit  donai'e,  ad  remanent iam,  de  haereditate  vero 
sua  nihilominus  dare  potest  secundum  quod  praediotum  est  duni 
scilicet  ratiouabiliter  hoc  fecerit.  Sciendum  autem  quod  si  quis 
liberum  habens  socagium  plures  habuerit  filios,  qui  omues  ad 
haereditatem  aequaliter  pro  aequalibus  proportionibus  sunt  ad- 
mittendi,  tunc  indistincte  verum  est  quod  pater  eorum  nihil  de 
haereditate  vel  de  questu,  si  nullam  habuerit  haereditatem,  alicui 
liliorum,  quod  excedat  rationabilem  partem  suam  quae  ei  con- 
tingat  de  tota  haereditate  paterna,  donare  poterit.  Sed  tautuni 
donare  poterit  de  haereditate  sua  pater  cuilibet  filiorum  suorum 
de  libero  socagio  in  vita  sua,  quantum  jure  successionis  post 
mortem  patris  idem  consequuturus  esset  de  eadem  haereditate. 
Veruutamen  occasione  liberalitatis  c[uod  patres  in  filios  vel  etiam 
in  alios  exercere  solent,  juris  quidem  quaestiones  in  hujusmodi 
donationibus  saepius  emerguut^. 


§  7.    A   Fine  of  Lands. 

The  only  direct  way  of  conveying  a  freehold  interest  in  lands 
from  one  person  to  another  was  by  feoffment  accompanied  by 
livery  of  seisin.  But  a  j^ractice  prevailed  as  early  as  the  reign 
of  Henry  II  of  conveying  lands  by  means  of  a  fictitious  or  collu- 
sive suit,  commenced  by  arrangement  by  the  intended  alienee 
against  the  alienor,  and  then  compromised  with  permission  of 
the  court  by  the  defendant  making  his  peace  with  the  claimant 
and  abandoning  his  defence.  The  whole  transaction  was  then 
enrolled  of  record,  and  a  document  was  drawn  up,  called  in  later 
times  the  foot,  chirograph,  or  indenture  of  the  fine,  of  which  the 

'  '  Corporation.'  For  the  precise  meaning  of  a  corporation,  see  note  on 
the  Statute,  7  Ed.  I,  in  Chap.  IV. 

*  Glanvill  proceeds  to  put  the  case  of  a  gift  by  a  father  to  one  of  four  or 
more  sons  of  a  portion  of  land  and  the  death  of  the  donee  without  issue. 
Who  is  to  succeed  ?  Not  the  father,  for  it  is  a  maxim  that  '  nemo  ejusdem 
tenementi  simul  potest  esse  haeres  et  dominus.'  The  same  reasoning 
excludes  the  elder  sons.  On  this  point  he  says,  '  Magna  juris  dubitatio  et 
contentio  in  curia  domini  regis  evenit  vel  evenire  potest.' 


78  Extracts  from  GlauviU.  [cHAt.  ii. 

following  is  a  specimen.  This  operated  as  an  assurance  of  lands 
binding  npon  all  persons,  whether  parties  or  not,  who  did  not 
within  a  given  time,  finally  fixed  (after  having  been  extended 
indefinitely)  at  five  years,  put  in  their  claim  ^  The  doctrine  of 
fines  was  formerly  one  of  the  most  intricate  branches  of  the  law 
of  Real  Property.  As  however  this  mode  of  dealing  with  land 
was  entirely  abolished  by  the  Act  for  the  Abolition  of  Fines 
and  Recoveries  (3  &  4  Will.  IV,  c.  74),  the  subject  belongs 
entirely  to  the  antiquities  of  our  law,  and  need  not  be  discussed 
further. 

Lib.  viii.  c.  i.  Contingit  autem  multotiens  loquelas  motas  in 
curia  domini  I'egis  per  amicabilem  compositionem  et  finalem  con- 
cordiam  terminari,  sed  ex  consensu  et  licentia  domini  regis,  vel 
ejus  justiciarii,  undecunque  fuerit  placitum,  sive  de  teri^a  sive  de 
alia  re.  Solet  autem  plerumque  concordia  talis  in  communem 
scripturam  redigi  et  per  communem  asseusum  partium ;  et  per 
illam  scriptviram  coram  justiciariis  domini  regis  in  banco  resiclen- 
tibus"  recitari,  et  coram  eis  utrique  parti,  sua  scriptura  per  omnia 
alii  concordans,  liberari  :  et  erit  sub  hac  forma  facta  : — 

c.  2.  Haec  est  finalis  concordia,  facta  in  curia  domini  regis 
apud  Westmonasterium  in  vigilia  beati  Petri  Apostoli,  anno 
regni  Regis  Henrici  Secundi  tricesinio  tei'tio  coram  Ranulpho 
de  Glanvilla  justiciario  domini  regis,  et  coram  H.  R.  W.  et  T.  et 
aliis  fidelibus  domini  regis  qui  ibi  tunc  aderant,  inter  Priorem  et 
Fratres  Hospitalis  de  Hierusalem,  et  W.  T.  filium  Normanum  per 
Alanum  filium  suuni,  quern  ij^se  attornavit  ^  in  curia  domini  regis 
ad  lucrandum  et  perdendum,  de  tota  terra  ilia  et  de  pertinentiis, 
excepta  una  bovata  terrae  et  tribus  toftis  quas  ipse  W.  tenuit : 
de  qua  terra  tota  (excepta  praedicta  bovata  et  tribus  toftis) 
placitum   fuit  inter  eos  in  curia   domini   regis ;    scilicet    quod 

^  Blackstoue,  ii.  354. 

^  At  this  time  the  Curia  "Regis,  sitting  usually  .at  Westminster,  or  where- 
ever  the  royal  court  happened  to  be.  After  Magna  Carta  (c.  1 7)  the  Court 
of  Common  Pleas  was  that  in  which  fines,  as  well  as  all  other  real  actions, 
took  place. 

^  'Made  his  attorney.'  An  attorney,  or  as  he  is  called  in  lib.  x.  c.  18, 
'responsalis  ad  lucrandum  vel  perdendum,'  was  a  person  appointed  by  the 
suitor  in  open  court  to  conduct  the  particular  cause  for  him,  upon  which 
a  writ  issued  to  the  sheriff  commanding  him  to  receive  the  person  so 
appointed  in  the  place  of  the  principal. 


§  8.]  Bemedies  hy  Assize.  79 

praedictus  W.  et  Alanus  concedunt  et  testaut.ir  donationein 
quam  Normaiius  pater  ipsius  AV.  ipsis  inde  fecit,  et  illam  terrani 
totam  quietam  clamavit  de  se  et  haeredibus  suis  domui  Hospi- 
talis  et  praefato  Priori  et  Fratribus  in  peq^etuum  :  excepta  una 
bovata  terrae  praefatae  et  exceptis  tribus  toftis  quae  remanent  ipsi 
W.  et  Alauo  et  haeredibus  suis,  tenenda  de  domo  Hospitali  et 
praedicto  Priore  et  Fratribus  in  perpetuum,  et  per  liberum  ser- 
vitium  quatuor  denariorum  per  annum  pro  omni  servitio  :  et 
pro  hac  concessione  et  testificatione  et  quieta  clamautia  jiraefatus 
Prior  et  Fratres  Hospitalis  dederunt  ipsi  Wilhelmo  et  Alano  cen- 
tum solidos  sterliugorum. 

c.  3.  .  .  .  Et  nota  quod  dicitur  talis  concordia  finalis  eo  quod 
finem  imponit  negotio,  adeo  ut  neuter  litigantium  ab  ea  de 
caetero  poterit  recedere.  Alterutro  enim  non  tenente  vel  non 
faciente  quod  convenit,  et  altera  partium  inde  se  conquerente  ; 
praecipietur  vicecomiti  quod  ponat  eum  per  salvos  plegios  quod 
sit  coram  justiciis  domini  regis  inde  responsurus  quare  finem 
ilium  non  tenuerit. 


§  8.  Modes  of  Recovering  Seisin    of  Lands.     Assizes  of 
Mort  D' Ancestor  and  of  Novel  Disseisin. 

A  sketch  of  the  history  of  the  law  of  real  property  would  not 
be  complete  without  some  notice  of  the  remedies  available  for 
the  ouster  or  dispossession  of  the  freehold.  The  extracts  given 
above  (§1)  are  suflnicient  to  show  the  nature  of  the  supreme  and 
final  remedy  by  which  a  tenant  in  fee  simple  could  assert  his 
right,  namely,  by  writ  of  right  commenced  either  in  the  Curia 
Regis  or  the  territorial  court.  The  extreme  complexity  of  the 
proceedings  in  the  writ  of  right  caused  the  adoption  of  other 
remedies,  by  Avhich  nothing  was  decided  as  to  the  question  of 
the  right  of  property,  but  merely  ■  that  the  one  party  had  a 
right  as  against  the  other  to  the  actual  seisin  or  possession  of  the 
lands. 

By  seisin  is  meant,  as  has  already  been  pointed  out,  possession 
as  of  freehold,  that  is  the  possession  which  a  freeholder  could 
assert  and  maintain  by  appeal  to  law.     There  was  in  fact  no 


So  Extracts  from  GlanvilL  [chap.  ii. 

other  kind  of  legal   possession  known  at  this  early  time.     In 
later  times  the  word  seisin  comes  to  be  distinct  from  possession, 
the  latter  being  applicable  to  the  possession  of  a  leaseholder  or 
copyholder,  the  former  being  confined  to  the  possession  of  a  free- 
holder.   It  should  however  be  observed  that  it  was  by  no  means 
necessary  for  a  person  to  be  seised  as  of  right.    There  was  a  seisin 
as  of  right,  and  a  seisin  as  of  wrong.     If  the  rightful  freeholder 
was  ousted  and  in  fact  lost  his  possession,  he  was  disseised  or 
put  out  of  seisin,  and  the  wrongdoer  or  disseisor  was  seised  in  his 
place,  holding  by  wrong  the  estate  from  which  he  had  ousted  the 
rio-htful  possessor.     He  had  in  fact  a  '  defeasible  title  V  and  for 
many  purposes  acts  done  by  him  held  good  as  if  he  had  been 
rightfully  seised.     A  person  so  seised  by  wrong  was  of  course 
liable  to  be  turned  out  by  the  rightful  owner  either  by  actual 
entry  upon  him,  or  by  process  of  law.     A  complicated  system  of 
rules  grew  up  as  to  the  circumstances  and  conditions  under  which 
this  right  of  actual  entry  existed,  when  it  ceased,  and  when  the 
only  remedy  was  by  calling  in  aid  the  action  of  the  tribunals. 
The  refinements  arising  on  this  part  of  the  law  it  will  not  be 
necessaiy  to  discuss. 

In  the  great  majority  of  cases  when  litigation  arose  as  to  the 
riffht  to  land,  it  would  be  sufficient  to  decide  which  of  the  two 
litigants  had  the  right  of  immediate  actual  possession  ;  or  rather, 
whether  the  plaintiff  could  make  out  a  right  to  the  possession  as 
against  the  person  actually  in  possession.  It  was  comparatively 
seldom  necessary  to  have  recourse  to  the  higher  remedy  of  a  writ 
of  right  in  order  to  decide  which  of  the  two  had  the  greater 
right  to  the  land.  These  possessory  actions,  as  the  former  class 
were  called,  must  be  brought  within  a  fixed  period,  and  different 
limits  were  from  time  to  time  assigned^. 

The  writ  of  assize  of  Mort  d' Ancestor  was  perhaps '  instituted 

^  Coke  upon  Littleton,  58  b. 

'^  See  as  to  different  periods  of  limitation,  Hale's  History  of  the  Common 
Law,  p.  122. 

^  Cap.  4.  '  Item  si  quis  obierit  francus-tenens,  haeredes  ipsius  remaneant 
in  tali  saisina  qualem  pater  suus  habuit  die  qua  fuit  vivus  et  mortuus,  de 


§  8.]  Hcmedies  hy  Assize.  8i 

by  the  ordinance  called  the  Assize  of  Northampton,  a.d.  1176, 
and  was  applicable  only  to  the  particular  case  where,  upon  the 
death  of  the  demandant's  father  or  mother,  brother  or  sister, 
uncle  or  aunt,  nephew  or  niece,  some  person  other  than  the 
lawful  heir  had  entered  upon  the  land.  If  the  demandant  could 
prove  that  the  ancestor  died  seised  '  in  his  demesne  as  of 
fee,'  and  that  he  (the  demandant)  was  the  right  heir,  the  re- 
sult of  the  decision  of  these  points  in  his  favour  would  be  the 
establishment  of  the  right  of  the  demandant  to  the  possession  as 
against  the  tenant.  Similar  writs,  varied  in  form  to  suit  the 
circumstances,  and  called  by  different  names,  were  used  for  the 
recovery  of  the  possession  by  a  person  claiming  as  heir  of  a 
more  distant  relation.  It  will  be  seen  from  the  form  of  the 
writ  that  this  proceeding  would  not  be  applicable  when  lands 
had  been  devised  by  will,  and  therefore  after  the  statutes  confer- 
ring the  power  of  devising  lands  by  will  this  remedy  was  no 
longer  available  ^ 

The  Assize  of  novel  disseisin^  was  applicable  where  the  de- 
mandant himself  had  been  turned  out  of  possession.  The 
material  points  necessary  for  him  to  establish  appear  from  the 


feodo  suo  ;  et  catalla  sua  habeant  uncle  faciant  de^isam  defuncti  :  et 
dominum  suum  postea  requii'ant,  et  ei  faciant  de  relevio  et  aliis  quae  ei 
facere  debent  de  feodo  suo.  Et  si  haeres  fuerit  infra  aetatem,  doniinus 
feodirecipiat  horaagium  suum  et  habeat  in  custodia  ilium  quamdiu  debuerit. 
Alii  domini,  si  plures  fuerint,  honiagium  ejus  recipiant,  et  ipse  faciat  eis 
quod  facpre  debuerit.  Et  uxor  defuncti  habeat  dotem  suam  et  partem  de 
catallis  ejus  quae  earn  contingit.  Et  si  dominus  feodi  negat  haeredibus 
defuncti  saisinam  ejusdem  defuncti  quam  exigunt,  Justitiae  domini  regis 
faciant  inde  fieri  recognitionem  per  duodecim  legales  homines,  qualem 
saisinam  defunctus  inde  habuit  die  qua  fuit  vivus  et  mortuus;  et  sicut 
recognitum  fuerit,  ita  haeredibus  ejus  restituant.  Et  si  quis  contra  hoc 
fecerit  et  inde  attaintus  fuerit,  remaneat  in  misericordia  regis.'  (Stubbs' 
Select  Charters,  p.  144.) 

'  See  Blackstone,  iii.  p.  187. 

^  This  is  also  referred  to  in  the  Assize  of  Northampton,  cap.  5 :  '  Item 
Justitiae  domini  regis  faciant  fieri  recognitionem  de  dissaisiuis  factis  super 
assisam,  a  tempore  quo  dominus  re.x  venit  in  Angliam  proximo  post  pacem 
factam  inter  ipsum  et  regem  filium  suum.'     (Stubbs,  ib.  p.  145.) 

O 


82  Extracts  from  Glanvill.  [chap.  ii. 

following  writ^  If  successful,  the  demandant  would  in  this 
proceeding  recover  his  possession,  and  also  damages  for  the 
injury  sustained. 

This  was  the  usual  remedy  for  the  recovery  of  the  pos- 
session of  lands.  In  certain  cases  which  need  not  be  here 
specified,  it  was  necessary  to  resort  to  the  writ  of  right.  But 
as  a  rule  all  practical  purposes  were  attained  by  means  of 
one  of  the  forms  of  action  adapted  to  trying  the  right  of 
possession. 

The  remedy  by  the  assizes  of  mort  d'ancestor  and  novel 
disseisin  was  only  applicable  in  particular  cases.  The  remedy 
for  the  recovery  of  possession,  applicable  to  all  cases, 
whether  falling  under  the  two  classes  just  mentioned  or  not, 
was  the  writ  of  entry.  The  law  on  this  subject  (now  obsolete) 
is  of  far  too  intricate  and  complicated  a  character  to  be  dis- 
cussed here^.  The  remedy  by  assize  was  preferred  when  ap- 
plicable, as  being  more  expeditious^.  In  later  times  both  the 
older  proprietary  and  possessory  remedies,  or  real  actions  as 
they  were  called,  were  superseded  by  the  action  of  ejectment, 
the  history  of  which  is  noticed  below*.  After  having  long  fallen 
into  disuse,  these  real  actions  were  abolished  by  3  and  4 
Will.  IV,  c.  27.  sec.  36. 

Lib.  xiii.  c.  i .  Generalia  quae  circa  praemissa  placita  de  recto 
frequentius  in  curia  contingunt  hactenus  in  parte  sunt  expedita. 
Nunc  vero  ea  quae  super  seisinis  solummodo  usitata  sunt  restant 
prosequenda  :  quae  quia  ex  beneficio  constitutionis  regni^  quae 
Assisa  nominatur  in  majori  parte  transigi  solent  per  recogni- 
tionem,  de  diversis  recognitionibus  restat  tractandum. 

*  See  Blackstone's  account  of  the  Assize  of  Novel  disseisin,  iii.  p.  187. 
2  See  Blackstone's  sketch  of  the  Writ  of  Entry,  iii.  p.  180,  &c. 

^  Festinum  remedium,  Stat.  West.  II,  13  Ed.  I,  c.  25. 

*  See  Chap.  III.  §  16. 

^  This  probably  refers  to  the  ordinance  mentioned  in  Glanvill,  ii.  7  (see 
above,  §1),  which  introduced  the  practice  of  referring  the  decision  on  a  writ 
of  right  to  the  oaths  of  twelve  men  properly  chosen,  instead  of  deciding  it 
by  battle.  This  mode  of  trial  per  recognitionem  seems  by  the  same  ordin- 
ance to  have  been  extended  to  questions  of  possession.  From  the  practice 
of  trial  per  recoynitionem  arose  trial  by  jury  in  civil  cases. 


§  8.]  Remedies  hy  Assize.  83 

c.  2.     Est  autem  quaedam  recognitio  quae  vocatui'  de  morte 

antecessoris Cum  quis  itaque  moritur  scisitus  de  aliquo 

libero  tenemento,  ita  quod  inde  fuerit  seisitus  in  dominico  suo 
sicut  de  feodo  suo\  haeres  eandem  seisinam  antecessoris  sui  recte 
petere  potest,  et  si  major  fuerit  habebit  tale  breve  : — 

ft 

c.  3.  Rex  vicecomiti  salutera.  Si  G.  filius  T.  fecerit  te  se- 
curum  de  clamore  suo  prosequendo,  tunc  summone  per  bonos 
summonitores  duodecim  liberos  et  legales  homines  de  vicineto 
de  ilia  villa  quod  sint  coram  me  vel  justiciis  meis  ea  die  parati 
Sacramento  i-ecognoscere,  si  T.  pater  praedicti  G.  fuit  scisitus  in 
dominico  suo  sicut  de  feodo  suo  de  una  virgata  tei'rae  in  ilia  villa 
die  qua  obiit ;  si  obiit  post  primam  corouationem  meam,  et  si 
ille  G.  propinquior  haeres  ejus  est,  et  interim  terram  illam 
videant,  et  nomina  eorum  imbreviari  facias,  et  summone  per 
bonos  summonitores  R.  qui  terram  illam  tenet,  quod  tunc  sit  ibi 
auditurus  illam  recognitionem.    Et  habeas  ibi  summonitores  etc. 

c.  32.  Postremo  de  ilia  recognitione  quae  appellatur  de  nova 
disseisina  restat  dicendum.  Cum  quis  itaque  infra  assisam 
domini  regis,  id  est  infra  tempus  a  domino  rege  de  consilio 
procerum  ad  hoc  constitutum^  quod  quandoque  majus  quan- 
doque  minus  censetur,  alium  injuste  et  sine  judicio  disseisiverit 
de  libero  tenemento  suo,  disseisito  hujus  constitutionis  beneficio 
subvenitur,  et  tale  breve  habebit:  — 

c.  33.  Rex  vicecomiti  salutem.  Questus  est  mihi  N.  quod 
R.  injuste  et  sine  judicio  disseisivit  eum  de  libero  tenemento 
suo  in  ilia  villa,  post  ultimam  transfretationem  meam  in  Norma- 
niam.  Et  ideo  tibi  praecipio  quod  si  praefatus  N.  fecerit  te 
securum  de  clamore  suo  prosequendo,  tunc  facias  tenementum 
illud  reseisiri  de  catallis  quae  in  eo  captae  fuerunt,  et  ipsum  cum 
catallis  esse  facias  in  pace  usque  ad  clausum  Paschae,  et  interim 
facias  duodecim  liberos  et  legales  homines  de  vicineto  videre 
terram  illam  et  nomina  eorum  imbreviari  facias  :  et  summone 
illos  per  bonos  summonitores  quod  tunc  sint  coram  me  vel  justiciis 
meis  parati  inde  facere  recognitionem.  Et  pone  per  vadium  et 
salvos  plegios  praedictum  R.  vel  ballivum  suum,  si  ipse  non 
fuerit  inventus,  quod  tunc  sit  ibi  auditurus  illam  recognitionem. 

c.  34.  Brevia  autem  de  nova  disseisina  diversis  modis 
variantur    secundum    diversitatem    tenementorum    in    quibus 

'  In  his  demesne  as  of  fee ;   the  proper  technical  expression  for   an 
estate  of  fee  simple  in  possession. 
"^  See  above,  p.  80. 

G  2 


84  Extracts  from  GlanviU. 

fuerint  disseisinae.  Si  autem  aut  levetur  fossatura  aliquod  aut 
prosternetur,  aut  si  exaltetur  stagnum  aliciijus  molendiui,  infra 
assisam  Domini  Regis,  ad  nocumentum  liberi  tenementi  ali- 
cujus,  secundum  haec  brevia  variantur  in  hunc  modum. 

c.  37-  Praeterea  si  facta  fuerit  disseisina  in  communia 
pasturae^  tunc  breve  tale  erit.  Rex  vicecomiti  salutem  :  Questus 
est  mihi  N.  quod  R.  injuste  et  sine  judicio  disseisivit  eum  de 
communi  pastura  sua  in  ilia  villa,  quae  pertinet  ad  liberum  tene- 
mentum  suum  in  eadem  vilk,  vel  in  ilia  alia  villa  post  ultimam 
transfretationem  meam  in  Normaniara.  Et  ideo  tibi  praecipio 
nuod  si  praefatus  N.  fecerit  te  securum  de  clamore  suo  prose- 
quendo  tunc  facias  duodecim  liberos  etc.  videre  pasturam  illam 
et  tenementum  et  nomina  eorum,  etc. 


As  to  common  of  pasture,  see  below,  Chap.  III.  §17. 


CHAPTER  III. 

STATE  OF  THE  LAW  FKOM  THE  END  OF  THE 

REIGN  OF  HENRY  II  TO  THE  END  OF 

THE  REIGN  OF  HENRY  III. 

In  the  period  treated  of  in  this  Chapter  we  find  the  law  of 
England  falls  into  two  great  divisions,  in  respect  of  the  modes 
in  which  it  originates,  namely,  Statute  Law,  or  law  resting  on 
express  legislative  enactment ;  and  Common  Law,  or  that  portion 
of  the  law  of  the  country  which  does  not  rest  on  express  legis- 
lative enactment. 

The  Statute  Book  commences  with  Magna  Carta,  or  rather  with 
the  third  reissue  in  the  ninth  year  of  Henry  III  of  the  Charter 
granted  by  John.  Although  the  later  constitution  of  the  legis- 
lature was  not  yet  developed.  Magna  Carta  and  the  other 
statutes  of  the  reign  of  Henry  III  are  of  equal  authority  with 
any  Act  passed  by  Parliament  after  its  full  constitution  was 
completed. 

The  field  of  Statute  Law  is  at  first  confined  and  narrow.  It 
chiefly  consists  in  an  authoritative  declaration  of  rules  which 
had  previously  existed  as  rules  of  law  or  custom,  together  with 
an  amendment  of  them  in  some  particulars.  Of  this  character 
mainly  are  the  enactments  afiectiug  private  law  ^  contained  in 
Magna  Carta. 

With  the  rise  of  Statute  Law  the  opposition  between  Common 

'  For  the  distinction  between  private  and  public  law  see  Apjiendis  to 
Parti,  Table  i. 


86  Richard  I,  John,  and  Renry  III.  [chap. 

Law  and  Statute  Law  comes  into  prominence.  "We  have  not 
yet  arrived  at  the  time  when  the  opposition  between  Common 
Law  and  Equity  has  begun.  This  double  opposition  has  given 
an  ambiguity  to  the  expression  '  Common  Law.'  As  opposed 
to  Statute  Law,  Common  Law  simply  means  law  which  is  inde- 
pendent of  legislative  enactment :  that  is  to  say,  a  rule  of 
Common  Law  is  either  a  rule  as  it  stood  before  some  definite 
change  was  wrought  in  it  by  statute,  or  a  rule  of  existing  law 
recognised  and  acted  upon  by  the  courts  but  not  resting  on  any 
statute  ^  It  is  plain  that  the  great  bulk  of  the  rules  of  law  pre- 
vailing at  the  period  in  question  consisted  of  rules  of  Common 
Law.  The  sources  of  our  knowledge  of  the  Common  Law  from 
this  time  forward  consist  of  ( i )  judicial  records,  including  the 
forms  of  the  writs  by  which  actions  were  commenced,  and 
reports  of  decisions  ;   (2)  authoritative  text-books. 

(i)  Judicial  records.  Now  that  the  jurisdiction  of  the  royal 
Court  in  suits  relating  to  the  freehold  was  thoroughly  established, 
and  was  exercised  either  by  the  Court  fixed  since  Magna  Carta^ 
at  Westminster,  or  by  the  itinerant  judges  sent  to  hold  pleas 
throughout  the  country^,  a  practice  had  arisen  of  keeping  acces- 
sible records  of  the  various  cases  brovight  before  the  superior 
tribunals.  These  records  usually  contain  an  abstract  of  the  writ 
or  formal  statement  of  the  cause  of  action  which  issued  out  of  the 
Chancery  under  the  king's  seal.  Some  specimens  of  these  writs 
preserved  by  Glanvill  havfe  been  already  given.  As  a  rule  they 
followed  certain  stereotyped  forms,  the  judges  refused  to  admit 
the  validity  of  writs  for  which  no  precedent  could  be  found. 
We  find  instances  of  new  writs  being  introduced  by  the  authority 
of  the  legislature'*,  and  some  improvements  and  modifications  of 
the  old  forms  of  action  doubtless  from  time  to  time  obtained 
recognition.     By  the  Statute  of  Westminster  II  an  attempt  was 

^  For  the  meanings  of  Common  Law  see  above,  p.  55,  note  i. 

*  c.  17.    Stubbs,  Select  Charters,  p.  291.  '  See  above,  p.  55. 

*  See  the  new  writ  given  by  the  authority  of  the  Council  for  the  protec- 
tion of  the  leaseholder,  below,  §  16,  and  see  the  forms  of  writs  provided  by 
the  Statute  de  Donis,  below,  Chap.  IV,  §  3. 


III.]  Sources  of  Law.  87 

made  to  extend  the  power  of  framing  new  writs  ^ ;  this  however 
was  long  confined  within  narrow  limits,  and  did  not  produce  the 
intended  result  of  providing  a  legal  remedy  wherever  experience 
had  shown  a  real  need  of  one.  Strictly  speaking,  therefore,  writs 
considered  as  a  source  of  the  Common  Law  may  be  referred 
either  to  Statute  Law  or  to  Judiciary  Law,  inasmuch  as  they 
derived  their  validity  either  from  some  exjDress  provision  of 
the  legislature,  or  from  the  fact  of  their  recognition  by  the 
tribunals. 

The  decisions  of  the  tribunals  therefore  now  take  their  place 
as  the  most  important  of  the  sources  of  law.  Formal  records 
are  kept  and  studied,  and  a  decision  of  a  judge,  especially 
if  he  be  a  man  of  weight,  is  treated  as  a  precedent  and 
followed  in  a  similar  case  by  another.  Thus  we  constantly 
find  in  Bracton  judicial  decisions  quoted  as  authorities 
for  particular  propositions^.  Traces  of  the  same  practice  are 
found  in  Glanvill.  Records  of  cases  adjudicated  upon  from  the 
time  of  Richard  I  are  in  existence,  and  have  been  published 
amongst  the  documents  issued  by  the  Record  Commission^ 
From  this  time  forward  the  recorded  decisions  of  the  regular 
tribunals  are  looked  to  as  authoritative  statements  of  the  law. 
And  as  from  time  to  time  new  cases  arise,  calling  for  a  new  rule 
or  a  deduction  from  an  old  rule  for  which  there  is  no  precedent, 
the  decisions  of  the  tribunals  come  to  constitute  in  the  strictest 
sense  of  the  term  a  source  or  cause  of  law.  Judge-made 
or  judiciary  law  *  henceforth  gi-adually  displaces  customary 
law. 

(2)  Authoritative  text-boolcs.    Already  in  the  time  of  Henry  II 

*  See  the  material  part  of  this  enactment  given  below,  Chap.  VI. 

^  See  instances  below,  and  Finlason's  note  on  Eeeves'  Hist,  of  English 
Law,  i.  p.  300. 

^  The  first  publication  was  in  i8ii,  under  the  name  of  Placitorum  Ab- 
breviatio.  The  collection  edited  by  Sir  F.  Palgrave  in  1835,  and  called 
Rotuli  Curiae  Regis,  is  more  copious,  and  begins  in  the  sixth  year  of 
Richard  I. 

*  For  the  characteristics  of  judiciary  law  see  Austin  on  Jurisprudence, 
lect.  xxxvii. 


88  Richard  7,  John,  and  Henri/  TIL      [chap.  hi. 

the  law  had  attained  such  a  degree  of  uniformity  throughout 
the  country  that  a  book  was  published  with  some  claims  to  be 
called  a  systematic  treatise  on  the  law.     Glanvill  however  rather 
presupposes  the  existence  of  a  body  of  law  than  gives  a  complete 
exposition  of  it.     It  is  a  treatise  rather  on  procedure  than  on 
the  principles  and  rules  of  law  which  that  procedure  enforces. 
After  Glanvill's   time   the  elaboration  of  the  law  as  a  system 
proceeded  with  rapid  strides.     In  the  reign  of  Henry  III  the 
treatise  of  Henricus  de  Bracton  was  published  \    It  purports  to 
be  a  systematic  exposition  of  the  whole  of  English  law,  designed 
for  the  use  of  students  and  of  judges^.     A  great  portion  of  the 
matter  of  the  work  is  based  on  the  sources  of  Roman  law,  or 
on  the  works  of  commentators^.     There  can  be  little  doubt  that 
at  the  time  at  which  Bracton  wrote  a  large  amount  of  Roman  law 
had  been  imported  into  the  English  system  chiefly  through  the 
medium  of  clerical  judges*.    The  jealousy  so  prevalent  in  later 
times  between  the  common  lawyers  and  the  civilians  had  not  yet 
arisen,  and  the  newly  appreciated  treasures  of  the  Roman  law 
were  doubtless  frequently  resorted  to  to  supply  both  matter  and 

*  Little  is  known  of  Bracton's  life.  He  appears  from  entries  in  the  Pla- 
citorum  Abbreviatio  to  have  served  as  an  itinerant  justice  in  Devonshire 
in  1246,  1252,  and  1255. 

"  'Cum  autem  hujusmodi  leges  et  consuetudines  per  insipientes  et  minus 
doctos  (qui  cathedram  judicandi  ascendunt  antequam  leges  didicerunt)  sae- 
pius  trahantur  ad  abusum,  et  qui  stant  in  dubiis  et  in  opinionibus  mul- 
tociens  pervertuntur  a  majoribus,  qui  potius  proprio  arbitrio  quam  legum 
auctoritate  causas  decidunt,  ad  instruction  em  saltern  minorum  ego  Henricus 
de  Bracton  animum  erexi  ad  Vetera  judicia  justorum  persci'utanda  dili- 
genter,  non  sine  vigiliis  et  labore,  facta  ipsorum  consilia  et  responsa  et 
quicquid  inde  notatu  dignum  inveni  in  unam  summam  redigendo,  sub 
ordine  titulorum  et  paragraphorum  (sine  melioris  sententiae  praejudicio) 
compilavi,  scripturae  suSragio  perpetuae  memoriae  commendanda.'  Bracton, 
lib.  i.  ad  init. 

3  Especially  Azo.  See  a  short  treatise,  'Henricus  de  Bracton  und 
sein  Verhaltniss  zum  Eomischen  Eechte,'  by  Dr.  Carl  Guterbock,  Berlin, 

1862. 

*  Amongst  the  judges  mentioned  by  Bracton  are  Martinus  de  Pateshull, 
Dean  of  St.  Paul's  :  W.  Ralegh,  clericus  ;  the  Abbot  of  Reading ;  and  the 
Bishops  of  Durham,  Chester,  and  Carlisle.     Giiterbock,  p.  37. 


SECT.  I.]  Magna  Carta.  89 

form  for  the  decisions  of  an  English  judge  ^  Thus  in  incor- 
porating a  large  portion  of  Roman  law  Bracton  followed  what 
was  probably  the  prevailing  tendency  of  the  time.  His  work 
bears  throughout  traces  of  the  influence  of  Roman  law.  Some- 
times he  inserts  (not  always  appropriately)  passages  of  the  Insti- 
tutes, Digest,  or  Code  of  Justinian ;  mox-e  often  the  form  of  the 
passage  is  slightly  altered,  but  the  substance  remains.  In 
arrangement  and  in  phraseology,  in  casual  words  and  turns 
of  expression,  the  debt  to  the  Roman  lawyers  is  e\'erywhere 
apparent.  This  is  however  less  conspicuous  in  the  extracts 
given  below,  relating  to  the  law  of  land,  than  in  most  of  the 
remainder  of  his  work.  The  very  different  juristic  concep- 
tions prevailing  in  this  branch  of  the  law,  which  were  due  to 
feudalism,  did  not  admit  of  any  thorough  application  of  the 
rules  of  Roman  law.  Many  instances  however  will  be  found  in 
the  following  extracts  from  Bracton  of  the  application  to  English 
law  of  conceptions  and  terms  borrowed  from  the  Roman. 


SECTION    I. 

EXTKACTS  FKOM  STATUTES. 

Magna  Carta. 

The  edition  of  Magna  Carta  with  which  the  Statute 'Book 
commences  is  that  issued  in  the  ninth  year  of  Henry  III, 
A.D.  1225.  The  Charter  was  first  issued  by  John  in  12 15:  it 
was  re-issued  in  the  first  year  of  Henry  III,  1 2 1 6 ;  again  in 
1217  ;  and  again  in  1225.  There  are  variations,  in  soine  cases 
of  some  importance,  between  the  different  editions.  The  follow- 
ing extracts  contain  the  principal  provisions  of  the  Charter  bear- 
ing upon  the  private  law  of  land.  It  will  be  seen  that  the 
statute  law  of  the  reigns  of  John,  Henry  III,  and  Edward  I 

*  See  Guterbock,  p.  37. 


90  Extracts  from  Statutes.  [chap.  hi. 

is  characterised  throughout  by  marks  of  the  influence  of  the 
great  lords  {domini  caintales).  It  was  the  interest  of  these  great 
tenants  in  cajnte  at  once  to  restrict  the  oppressive  rights  of  the 
Crown  (and  to  that  extent  no  doubt  the  inferior  tenants  parti- 
cipated in  the  benefit  of  the  legislation),  and  also  to  protect  and 
enhance  the  rights  of  lords  of  manors  as  against  their  tenants. 
The  former  characteristic  is  conspicuous  in  the  following  provi- 
sions of  Magna  Carta,  the  latter  in  the  statutes  of  Merton,  De 
Religiosis,  De  Donis,  and  Quia  Emptores. 


§  I.    Reliefs. 

The  following  provisions  fix  the  amount  due  by  way  of  relief 
on  the  succession  of  the  heir  of  the  tenant,  and  the  conditions 
under  which  it  is  to  be  exacted  \ 

Magna  Carta  (John,  a.d.  12 15),  c.  ii.  Si  quis  comitum  vel 
baronum  nostrorum,  sive  aliorum  tenentium  de  nobis  in  capite 
per  servitium  militare,  mortuus  fuerit,  et,  cum  decesserit,  haeres 
suus  plenae  aetatis  fuerit  et  relevium  debeat,  habeat  haeredi- 
tatem  suam  per  antiquum  relevium  ;  scilicet  haeres  vel  haeredes 
comitis,  de  baronia  comitis  integra  per  centum  libras ;  haeres 
vel  haeredes  militis,  de  feodo  militis  integro  per  centum  solidos 
ad  plus ;  et  qui  minus  debuerit  minus  det  secundum  antiquam 
consuetudinem  feodorum. 

c.  iii.  Si  autem  haeres  alicujus  talium  fuerit  infra  aetatem  et 
fuerit  in  custodia,  cum  ad  aetatem  pervenerit,  habeat  haeredi- 
tatem  suam  sine  relevio  et  sine  fine. 

In  the  first  charter  of  Henry  III  issued  in  12 16  and  in  the 

subsequent  editions  the  latter  article  appears  with  the  following 

addition :  — 

c.  iii.  Si  autem  haeres  alicujus  talium  fuerit  infra  aetatem, 
dominus  ejus  non  habeat  custodiam  ejus  nee  terrae  suae,  ante- 
quam  homagium  ejus  ceperit ;  et  postquam  talis  haeres  fuerit  in 
custodia,  cum  ad  aetatem  pervenerit,  scilicet  viginti  unius  anni, 
habeat  haereditatem  suam  sine  relevio  et  sine  fine,  ita  tanien 

*  As  to  reliefs,  see  above,  pp.  31,  64. 


SECT.  I.  §  2.]  Giiardian  and  Ward.  91 

quod  si  ipse  dum  infra  aetatem  fuerit,  fiat  miles,  nihilominus 
terra  remaneat  in  custodia  domini  sui  usque  ad  terminum  prae- 
dictum. 


§  2.    Guardian  and  Ward^. 

Magna  Carta  (12 15),  c.  iv.  Gustos  terrae  bujusmodi 
haeredis  qui  infra  aetatem  fuerit,  non  capiat  de  terra  liaeredis 
nisi  rationabiles  exitus,  et  rationabiles  consuetudines,  et  ratioua- 
bilia  servitia,  et  hoc  sine  destructione  et  vasto  hominum  vel 
rerum  ;  et  si  nos  commiserimus  custodiam  alicujus  talis  terrae 
vicecomiti  vel  alicui  alii  qui  de  exitibus  illius  nobis  I'espondere 
debeat,  et  ille  destructionem  de  custodia  fecerit  vel  vastum,  nos 
ab  illo  capiemus  emendam,  et  terra  committatur  duobus  lega- 
libus  et  discretis  hominibus  de  feodo  illo,  qui  de  exitibus  respon- 
deaut  nobis,  vel  ei  cui  eos  assignaverimus  ;  et  si  dederimus  vel 
vendiderimus  alicui  custodiam  alicujus  talis  terrae,  et  ille  de- 
structionem inde  fecerit  vel  vastum,  amittat  ipsam  custodiam,  et 
tradatur  duobus  leijalibus  et  discretis  hominibus  de  feodo  illo 
qui  similiter  nobis  respondeant  sicut  pi'aedictum  est. 

c.  V.  Gustos  autem,  quamdiu  custodiam  terrae  habuerit,  sus- 
tentet  domes,  parcos,  vivaria,  stagna,  molendiua,  et  cetera  ad 
terram  illam  pertinentia,  de  exitibus  terrae  ejusdem ;  et  reddat 
haeredi,  cum  ad  plenam  aetatem  pervenerit,  terram  ?uam  totam 
instauratam  de  carrucis  et  wainnagiis  ^  secundum  quod  tempus 
wainnagii  exiget  et  exitus  terrae  rationabiliter  poterunt  sus- 
tinere  I 

In  the  charter  of  12 16  are  added  the  words, — et  omnibus 
aliis  rebus  ad  minus  secundum  quod  illam  recepit.  Haec  omnia 
observentur  de  custodiis  archicpiscopatuum,  episcopatuum,  abba- 
tiarum,  pi'ioratuum,  ecclesiarum  et  dignitatum  vacantium,  excepto 
quod  custodiae  hujusmodi  vendi  non  debent  *. 


*  See  above,  pp.  33,  66. 

*  Wainnagium, '  farming  stock'  (?).  See  Stubbs,  Select  Chartei-s,  Glossary. 
'  By  3  Edward  I,  cap.  48,  it  is  provided  that  if  the  guardian  make  a 

feoffment  of  the  land  the  heir  can  recover  against  both  guardian  aijd  feoffee 
by  assize  of  novel  disseisin,  and  the  guardiau  shall  lose  the  custody  of  the  land. 
If  the  guardian  be  otlier  than  the  chief  lord,  he  is  besides  to  be  '  grievously 
punished  by  the  king'  (soit  en  greve  peine  denvers  le  roi). 

*  See  these  provisions  re-enacted  3  Edward  I,  cap.  2 1 . 


gz  Extracts  from  Statutes.  [chap.  hi. 

c.  xxxvii.  Si  aliquis  teneat  de  nobis  per  feodifirmam  ^,  vel 
per  sokagium,  vel  per  burgagium,  et  de  ab'o  terram  teneat  per 
servitium  militare,  nos  non  babebimus  custodiam  baeredis  nee 
terrae  suae  quae  est  de  feodo  alterius,  occasione  illius  feodi- 
firmae,  vel  sokagii,  vel  burgagil ;  nee  babebimus  custodiam 
illius  feodiiirmae,  vel  sokagii,  vel  bm-gagii,  nisi  ipsa  feodifirma 
debeat  servitium  militare.  Nos  non  babebimus  custodiam 
baeredis  vel  teiTae  alicujus,  cpiam  tenet  de  alio  i^er  servitium 
militare,  occasione  alicujus  parvae  sergenteriae^  quam  tenet  de 
nobis  per  servitium  reddendi  nobis  cultellos,  vel  sagittas,  vel 
bujusmodi. 


§  3.    Marriage, 

It  has  already  been  seen  tbat  in  the  time  of  Henry  II  the 
right  of  the  lord  to  dispose  of  bis  tenant  in  marriage  applied 
only  to  female  tenants.  Glauvill  does  not  speak  of  this  right  as 
a  source  of  profit  to  the  loi'd,  but  merely  as  a  security  against 
the  lord  being  obliged  to  receive  the  homage  of  a  hostile  or 
unfriendly  tenant^.  Tbat  this  was  the  origin  of  the  practice 
appears  clearly  from  the  charter  of  Henry  I  * ;  nor  could  the 
lord  arbitrarily  refuse  his  consent,  much  less  force  his  female 
tenant  to  marry  against  her  will.  In  covirse  of  time,  rights 
which  wei'e  formerly  based  on  purely  fevidal  principles  were 
I'etained  in  an  exaggerated  form  merely  because  they  became 
a  source  of  profit  to  the  lord.  In  this  case  the  right  to  give 
consent  to  the  marriage  of  a  female  tenant  developed  into  the 
right  to  tender  a  suitable  match,  not  only  to  the  female  tenant, 
but  also  to  the  male  tenant  if  under  age,  a  claim  for  which  no 
feudal  justification  existed,  and  which  was  based  simply  on  a 
strained  construction  of  the  general  word  'haeredes'  in  the 
following   section   of  Magna  Carta  ^     It   was   held    that   this 

' '  Fee  farm,'  that  is,  where  a  rent  is  reserved  to  tlie  grantor  in  perpe- 
tuity out  of  the  fee  simple  when  it  is  granted  away.  See  Butler's  note 
(5)  to  Coke  upon  Littleton,  143  b,  and  Blackstone,  ii.  43. 

*  As  to  petit  serjeanty  see  above,  p.  39. 
^  See  above,  Chap.  II.  §  3  (4). 

*  See  above,  p.  33.  *  See  Blackstone,  ii.  p.  71. 


SECT.  I.  §  3.]  Marriage.  93 

expression  applied  to  male  as  well  as  female  heirs,  and  gave  the 
lord  the  right  to  the  marriage  of  the  one  as  well  as  the  other. 
The  penalty  by  which  the  lord's  rights  were  enforced  was  finally 
fixed  by  the  subjoined  provision  of  the  Statute  of  Merton. 

Magna  Cakta  (12 15),  c.  vi.  Haeredes  maritentur  absque 
disparagatione,  ita^  tamen  quod,  antequam  contrahatur  matri- 
monium,  ostendatur  propinquis  de  cousanguinitate  ipsius  hae- 
redis. 

Statute  of  Mertox,  20  Hen.  Ill,  c.  vi.  De  haeredibus  per 
parentes  vel  per  alios  vi  abduetis  vel  detentis,  ita  provisum  est ; 
quod  quicunque  laicus  inde  convictus  fuerit  quod  puerum^  sic 
maritaverit,  reddat  perdenti  valorem  maritagii,  et  pro  delicto 
corpus  ejus  capiatur  et  imprisonetur,  donee  perdenti  emendaverit 
delictum  si  puer  maritetur,  et  praeterea  donee  domiuo  regi  satis- 
fecerit  pro  transgressione  ;  et  hoc  fiat  de  haerede  infra  quatuor-  , 
decim  annos  existente.  De  haerede  autem  cum  sit  quatuordecim 
annorum  vel  ultra,  usque  ad  plenam  aetatem,  si  se  maritaverit 
sine  licentia  domini  sui,  ut  ei  auferat  niaritagium  suum,  et 
dominus  offerat  ei  rationabile  maritagium  ubi  non  dispara- 
getur,  dominus  suus  tunc  teneat  terram  ejus  ultra  terminum 
aetatis  suae,  scilicet  viginti  et  unius  auni,  per  tantum  tempus 
quod  possit  inde  duplicem  valorem  maritagii  recipere  secundum 
aestimationem  legalium  hominum,  vel  secundum  quod  ei  pro 
eodem  maritagio  prius  fuerit  oblatum  sine  fraude  et  malitia, 
et  secundum  quod  probari  potei-it  in  curia  domini  regis. 

De  dominis  qui  maritaverint  illos  quos  habeut  in  custodia 
villanis  vel  aliis  sicut  burgensibus  ubi  disparagentur  :  si  talis 
haeres  fuerit  infra  quatuordecim  annos,  et  talis  aetatis  quod 
consentire  non  possit,  tunc  si  parentes  conquerantur,  dominus 
ille  amittat  custodiam  usque  ad  legitimam  aetatem  haeredis  ; 
et  omne  commodum,  quod  inde  perceptum  fuerit,  convertatur 
in  commodum  ipsius  qui  infra  aetatem  est,  secundum  dispo- 
sitionem  et  provisionem  pareutum,  contra  dedecus  ei  factum. 
Si  autem  fuerit  quatuordecim  annorum  et  ultra,  quod  con- 
sentire poterit,  et  tali  maritagio  cousenserit,  nulla  sequatur 
poena. 

^  This  proviso  is  somewhat  significantly  omitted  in  the  Charter  of  12 16 
and  subsequent  editions. 

^  Notice  the  extension  to  males. 


94  Extracts  from  Statutes.  [chap.  hi. 

c.  vii.  Si  quis  haeres  cujuscunque  fuerlt  aetatis  pro  domino 
suo  se  noluerit  mavitare,  non  compellatur  hoc  facere,  sed  cum  ad 
aetatem  pervenerit,  det  domino  suo  et  satisfaciat  ei  de  tanto, 
quantum  percipere  posset  ab  aliquo  pro  maritagio,  antequam 
terram  suam  recipiat,  et  hoc  sive  voluerit  se  maritare  sive  non ; 
quia  maritagium  ejus  qui  infra  aetatem  est  mero  jure  pertinet 
ad  dominum  feodi  \ 


§  4.    Widow's  Dower. 

The  additional  provision  made  in  the  edition  of  1 2 1 7  to  the  pro- 
visions of  the  earlier  issues  of  the  Charter  in  respect  of  widows' 
riijhts  fixed  the  law  of  dower  on  the  basis  on  which  it  still  rests. 
The  general  rule  of  law  still  is  that  the  widow  is  entitled  for 
her  life  to  a  third  part  of  the  lands  of  which  her  husband  was 
seised  for  an  estate  of  inheritance  at  any  time  during  the  mar- 
riage. At  the  present  day  there  are  means  provided^  which  are 
almost  universally  adopted,  of  barring  or  defeating  the  widow's 
claim.     The  general  rule  of  law  however  remains  the  same. 

The  history  of  the  law  of  dower  deserves  a  short  notice,  which 
may  conveniently  find  a  place  here.  In  the  time  of  Henry  II 
it  was  the  custom  to  endow  the  wife  ad  ostium  ecclesiae.  The 
dower  might  be  less,  but  could  not  be  more  than  a  third  part  of 
the  lands  possessed  by  the  husband  at  the  time  of  the  marriage. 
If  the  amount  of  dower  were  not  specially  named  the  law  fixed 
it  at  the  third  part  of  the  freehold  which  the  husband  possessed 
at  the  time  of  the  marriage^.  Dower  too  might  be  granted  to  a 
woman  out  of  chattels  personal,  and  in  this  case  she  w^ould  be 
entitled  to  a  third  part  *.  In  process  of  time  however  this  species 
of  dower  ceased  to  be  regarded  as  legal,  and  was  expressly  denied 
to  be  law  in  the  time  of  Henry  IV  ^.     A  trace  of  it  still  remains 

'  See  tbe  provisions  of  the  Statute  3  Ed.  I,  cap.  22,  by  which  these  pro- 
visions of  the  Statute  of  Merton  are  re-enacted  and  extended. 
2  See  3  and  4  WiU.  IV,  c.  105. 
'  Glanvill,  lib.  vi.  c.  i. 

*  lb.  c.  2. 

*  Blackstone,  ii.  p.  134. 


SECT.  I.  §  4.]  Bower.  95 

in  the  expression  in  the  marriage  service,  '  With  all  my  worldly 
goods  I  thee  endow.' 

Tlie  proper  remedy  from  the  time  of  Glanvill,  if  the  widow 
was  wrongfully  kept  out  of  her  dower,  was  by  the  real  actions, 
called  the  writ  of  right  of  dower,  writ  of  dower,  and  of  dower 
unde  nihil  lutbet ;  the  latter  was  only  applicable  when  the  widow 
was  kept  out  of  the  whole  of  her  dower.  The  first  was  applicable 
when  she  was  deprived  of  part,  and  the  second  in  all  other  cases. 
These  forms  of  real  actions  were  reserved  in  the  statute^  by  which 
most  kinds  of  real  actions  were  abolished,  but  have  long  fallen 
into  disuse  ^. 

Magna  Carta  (ed.  1215),  c.  vii.  Vidua  post  mortem  mariti 
sui  statim  et  sine  difficultate  aliqua  habeat  maritagium^,  et 
haereditatem  suam,  nee  aliquid  det  pro  dote  sua,  vel  pro  mari- 
tagio  suo,  vel  haeredltate  sua  quam  haereditatem  maritus  suus 
et  ipsa  tenuerint  die  obitus  ipsius  maiiti,  et  maneat  in  domo 
mariti  sui  per  quadragiuta  dies*  post  mortem  ipsius  infra  quos 
assignetur  ei  dos  sua. 

In  the  charter  of  1 2 1 6  are  added  the  words, — nisi  prius  ei  dos 
fuerit  assignata,  vel  nisi  domus  ilia  sit  castrum,  et  si  de  castro 
recesserit,  statim  provideatur  ei  domus  competens  in  qua  possit 
honeste  morari  quousque  dos  sua  ei  assignetur  secundum  quod 
praedictum  est. 

And  in  the  edition  of  1 2 1 7  there  is  the  further  addition, — 
Assignetur  autem  ei  pro  dote  sua  tertia  pars  totius  terrae  mariti 
sui  quae  sua  fuit  in  vita  sua,  nisi  de  minori  dotata  fuerit  ad 
ostium  ecclesiae. 

c.  viii.  Nulla  vidua  distringatur^  ad  se  maritandum  dum 
voluerit  viverc  sine  marito,  ita  tamen  quod  securitatem  faciat 
quod  se  non  maritabit  sine  assensu  nostro,  si  de  nobis  tenuerit, 
vel  sine  assensu  domini  sui  de  quo  tenuerit,  si  de  alio  tenuerit. 


*  3  and  4  AVill.  IV,  c.  27.  s.  36. 

'  See  23  and  24  Vic.  c.  126.  s.  26. 

^  i.e.  her  estate  in  fr.-ink-mamage(see  above,  p.  75,  n.  2),not  her  marriage, 
as  Sir  E.  Coke  (2nd  Inst.  p.  16)  translates  it. 

*  Called  'the  widow's  quarantine.'     Blackstone,  ii.  p.  135. 

'  It  seems  to  have  been  the  practice  for  the  lord  to  exact  a  fine  on  his 
female  tenant's  marriage,  and  sometimes  to  compel  or  distrain  a  widow  to 
marry  again  in  order  to  get  the  fine. 


96  EoGtracts  from  Statutes.  [chap.  hi. 


§  5.  Scutage  and  Aids. 

During  the  Norman  period  a  practice  arose  of  making  a  com- 
position in  money  for  actual  militaiy  service.  This  was  called 
scutage  or  escuage^  Madox^  finds  traces  of  this  practice  as 
early  as  the  reign  of  Henry  I.  It  became  very  common  in 
the  reigns  of  Henry  II,  Richard  I,  and  John.  In  the  Dialogus 
de  Scaccario  (Henry  II)  scutagium  is  thus  described :  Fit  inter- 
dum,  ut  imminente  vel  insurgente  in  regnum  hostium  machi- 
natione  decernat  rex  de  singulis  feodis  militum  summam  ali- 
quavi  solvi,  marcam  scilicet  vel  libram  unam,  unde  militihus 
stipendia  vel  donativa  succedant.  Mavult  enim  princeps  stipen- 
diarios  quam  domesticos  hellicis  opponere  casibus.  Haec  itaque 
summa,  quia  nomine  scutorum  solvitur,  scutagium  nuncupatur'^ . 

Every  tenant  in  capite  or  immediate  tenant  of  the  Crown  was 
bound  either  to  supply  the  king  with  as  many  knights  as  he 
held  knights'  fees  of  the  Crown,  or  to  render  an  equivalent  in 
money,  the  assessment  of  which  must  have  been  more  or  less 
arbitrary  before  this  provision  of  Magna  Carta.  The  fact  of  the 
tenant  in  capite  doing  personal  service  in  the  king's  army,  or 
paying  or  being  duly  charged  Avith  his  escuage  to  the  king, 
entitled  him  in  his  turn  to  escuage  from  his  under-tenants  by 
knio-ht-service.  Sometimes  the  amount  so  payable  was  fixed  or 
ascertained  in  the  charter  of  feoffment.  But  in  many  cases  the 
uncertainty  of  the  amount  must  have  been  felt  as  a  great  grievance, 
and  hence  the  importance  of  this  provision  of  Magna  Carta.  The 
significance  of  this  chapter  in  its  bearing  on  Constitutional 
History  does  not  concern  us  here. 

In  the  reissues  of  the  Charter  in  the  reign  of  Heniy  III  the 
following  articles  were  omitted.  They  were  however  revived  by 
the  Statute  called  '  Confirmatio  Cartarum '  (25  Edward  I).    The 

^  The  definite  origin  of  scutage  is  assigned  to  the  occasion  of  the  expe- 
dition of  Henry  II  to  Toulouse  in  1 159.    See  Stubbs,  Const.  Hist.  i.  p.  456. 

2  Hist.  Exch.  i.  ch.  16. 

3  Stubbs,  Select  Charters,  p.  192. 


SECT.  I.  §§  6,  7.]     Forfeiture.     Alienation.  97 

Statute    of  Westminster    I   (3    Edward   I,    c.   36)    ascertained 
the  amount  of  aids  to  be  taken  by  mesne  lords,  and  the  Statute 

25  Edward  III,  ch.  5.  c.  1 1,  fixed  those  to  be  taken  by  the 

king  \ 

Magna  Carta  (ed.  12 15),  c.  xii.  Nullum  scutagium^  vel 
auxilium^  ponatur  in  regno  nostro,  nisi  per  commune  consilium 
regni  nostri,  nisi  ad  corpus  nostrum  redimendum,  et  primo- 
genitum  filium  nostrum  militem  faciendum,  et  ad  filiam  nosti'am 
primogenitam  semel  maritandam,  et  ad  haec  non  fiat  nisi  ra- 
tionabile  auxilium :  simili  modo  fiat  de  auxiliis  de  civitate 
Londoniarum. 

c.  XV.  Nos  non  concedemus  de  cetero  alicui  quod  capiat 
auxilium  de  liberis  hominibus  suis,  nisi  ad  corpus  suum  redi- 
mendum, et  ad  faciendum  primogenitum  filium  suum  militem, 
et  ad  primogenitam  filiam  suam  semel  maritandam,  et  ad  haec 
non  fiat  nisi  ratiouabile  auxilium. 


§  6.  Forfeiture  *. 

Magna  Caeta  (1215),  c.  xxxii.  Nos  non  tenebimus  terras 
illorum  qui  convicti  fuerint  de  felonia,  nisi  per  unum  annum 
et  unum  diem^  et  tmic  reddantur  terrae  dominis  feodorum. 


§  7.  Alienation  ^. 

Magna  Carta  (1217),  c.  xxxix.  Nullus  liber  homo  de  cetero 
det  amplius  alicui  vel  vendat  de  terra  sua  quam  ut  de  residuo 
terrae  suae  possit  sufficienter  fieri  domino  feodi  servitium  ei 
debitum  quod  pertinet  ad  feodum  illud. 

1  Blackstone,  ii.  p.  65.     See  further  as  to  scutage,  below,  §  10. 

*  Scutagium  is  properly  distinguished  from  auxilium  :  sometimes  how- 
ever the  word  is  used  in  a  large  sense,  as  equivalent  to  any  payment 
assessed  on  a  knight's  fee,  and  so  including  aids. 

'  See  above,  pp.  32,  66. 

*  See  above,  p.  70. 

*  For  the  meaning  of  this  enactment  and  the  history  of  the  law  of 
alienation,  see  below,  §  13,  and  Chap.  IV,  §  5. 

H 


^8  Extracts  from  Statutes.  [chap.  hi. 


§  8.  Mortmain^. 

Magna  Carta  (12 17),  c.  xliii.  Non  liceat  alicui  de  cetero 
dare  terram  suam  alicui  domui  religiosae  ita  quod  illam  resumat 
tenendam  de  eadem  domo,  nee  liceat  alicui  domui  religiosae 
terram  alicujus  sic  accipere  quod  ti'adat  eam  illi  a  quo  earn  rece- 
perit  tenendam.  Si  quis  autem  de  cetero  terram  suam  alicui 
domui  religiosae  sic  dederit  et  super  hoc  convincatur,  donum 
suum  penitus  cassetur  et  terra  ilia  domino  suo  illius  feodi  in- 
curratur. 

§  9.  Bights  of  tJoe  Lord  of  a  Manor  over  iJie  Waste^. 

Statute  of  Merton,  20  Henry  III,  c.  iv.  Item  quia  multi 
magnates  Angliae,  qui  feoffaverint  milites  et  libere  tenentes 
suos  de  parvis  tenementis  in  magnis  maneriis  suis,  questi 
fuerunt  quod  commodum  suum  facere  non  potueruut  de  residue 
maneriorum  suoi'um,  sicut  de  vastis,  boscis,  et  pasturis,  quuni 
ipsi  feoffati  babeant  sufficientem  pasturam,  quantum  pertinet 
ad  tenementa  sua  :  ita  provisura  est  et  concessum,  quod  qui- 
cunque  hujusmodi  feoffati  assisam  novae  disseisiuae  deferant  de 
comraunia  pasturae  suae,  et  coram  justiciis  recognitum  fuerit 
quod  tantam  pasturam  babeant  quantum  sufficit  ad  tenementa 
sua,  et  quod  babeant  liberum  ingressum  et  egressum  de  tene- 
mentis suis  usque  ad  pasturam  suam,  tunc  inde  sint  contenti, 
et  illi  de  quibus  conquesti  fuerint  recedant  quieti  de  eo  quod 
commodum  suum  de  terris,  vastis,  boscis,  et  pasturis  feceriut. 
Si  autem  dixerint  quod  sufficientem  pasturam  non  babeant,  vel 
sufficientem  ingressum  vel  egressum,  quantum  pertinet  ad  tene- 
menta sua,  tunc  inquiratur  vei-itas  per  assisam.  Et  per  assisam 
recognitum  fuerit,  per  eosdem  quod  in  aliquo  fuerit  impeditus 
eorum  ingressus  vel  egressus,  vel  quod  non  babeant  sufficientem 
pasturam  et  sufficientem  ingressum  et  egressum  sicut  praedic- 
tum  est,  tunc  recuperent  seisinam  suam  per  visum  juratorum  : 
ita  quod  per  discretionem  et  sacramentum  eorum  babeant  con- 
querentes  sufficientem  pasturam  et  sufficientem  ingressum  et 
egressum  in  forma  praedicta ;  et  disseisitores  sint  in  miseri- 
cordia  domini  regis,  et  dampna  reddant  sicut  reddi  debent  ante 
provisiouem  istam.      Si  autem  recognitum  fuerit  per  assisam 

*  For  the  law  of  mortmain  and  the  construction  of  this  enactment,  see 
below,  Chap.  IV.  §  2. 
2  See  below,  §  17. 


SECT.  II.  §  lo.]  Tenures.  99 

quod  querentes  sufficientem  liabent  pasturam,  cum  libero  et 
sufficieuti  ingvessu  et  egressu  ut  praedictum  est;  tunc  licite 
faciant  alii  commodum  suuin  de  residue,  et  recedant  do  ilia 
assisa  quieti. 


SECTION    II. 
Extracts  from  Beacton. 

§  10.    Tenures. 

The  following  extracts  give  the  outline  of  Bracton's  division  of 
Tenures.  Tenures  now  fall  into  tAvo  great  classes.  There  had 
always  been  a  distinction  in  point  of  fact  between  the  holding  of 
land  by  a  fi-eemau  and  the  beneficial  enjoyment  of  land  per- 
mitted to  the  non-fi-ee.  In  Bracton's  time  freehold  tenure  or 
the  holding  of  land  by  free  services  had  come  to  be  opposed  to 
the  holding  of  land  by  non-free  services  or  services  unworthy  of 
a  freeman.  What  was  formerly  a  distinction  principally  affect- 
ing the  status  of  the  holder  comes  now  to  be  regarded  as  the 
basis  of  two  different  classes  of  rights  of  property.  Dealing  first 
with  freehold  tenures,  Bracton  proceeds  to  enumerate  their  prin- 
cipal classes,— knight  service,  grand  serjeanty,  socage,  and  tenure 
by  uncertain  but  non-military  services.  The  nature  of  the 
tenure  depends  on  the  service  to  be  rendered  in  respect  of  the 
land.  The  following  passages  seem  to  lead  to  the  following 
principal  conclusions. 

(i)  Whei'e  land  is  held  of  a  mesne  lord  by  knight  service  the 
actual  military  service  is  due,  not  to  the  immediate  lord,  but  to 
the  king  ^.  The  only  exception  to  this  rule  seems  to  have  been 
when  the  lord  went  with  the  king  in  propria  jjersona.  The 
theory  seems  to  have  been  that  for  every  knight's  fee  the  service 
ti7iitis  militis  for  forty  days  in  every  year,  if  called  upon,  oi" 
scutage  in  lieu  thereof,  was  due  to  the  Crown  ^. 

'  See  above,  p.  29. 

-  See  Coke  upon  Littleton,  69  a,  and  Madox,  History  of  the  Exchequer, 
chap,  xvi ;  above,  §  5,  and  Chap.  I.  p.  51,  note  2. 

H  2 


J  00  'Extracts  from  Bracton.  [chap.  hi. 

(2)  Where  military  service  is  thus  due  to  the  king  the  tenure 
is  knight  sei'vice,  and  the  lord  enjoys  the  valuable  incidents  of 
wardship  and  marriage. 

(3)  No  services  of  whatever  character  rendered  to  the  lord 
in  his  private  capacity  are  sufficient,  according  to  the  better 
opinion,  to  give  the  tenure  the  character  of  tenure  by  knight 
service,  and  consequently  to  cause  the  incidents  of  wardship  and 
marriage  to  attach.  The  services  must  be  'propter  exercitum 
regis  et  patriae  tuitionem.'  In  the  case  of  freehold  tenure  where 
no  military  service  is  due  a  further  distinction  arises  be- 
tween tenure  by  uncertain  services  to  be  rendered  to  the  lord, 
and  socage  tenure.  These  however  probably  were  generally  con- 
founded together  \  and  the  distinguishing  characteristic  was 
evidently  the  one  of  most  practical  importance, — whether  the 
lord  was  or  was  not  entitled  to  wardship  and  marriage. 

(4)  "Whether  the  land  was  held  by  knight  service  or  other- 
wise was  a  question  of  evidence  to  be  decided  first  by  refer- 
ence to  the  charter  by  which  the  laud  might  be  burdened 
with  military  service  or  its  equivalent,  although  it  had  been 
previously  free  from  burdens,  or  freed  from  them,  although  pre- 
viously so  burdened :  or  if  the  charter  was  silent,  regard  must 
be  had  to  the  character  and  amount  of  the  services  customarily 
rendered  in  respect  of  the  land  in  question,  or  of  land  in  its 
neio-hbourhood.  When,  as  was  usually  if  not  always  the  case 
(except  with  the  king's  own  immediate  tenants),  no  actual  mili- 
tary service  was  rendered  to  the  king  by  any  one  in  respect  of 
the    land   held   by  knight  service  ^   scutage  was  paid  in  lieu 

1  Littleton  expressly  declares  (s.  118)  that  every  tenure  that  is  not  a 
tenure  in  chivalry  is  tenure  in  socage. 

2  In  process  of  time  a  distinction  seems  to  have  arisen  between  the 
liability  of  tenants  who  held  of  the  king  at  de  corona  (that  is,  where  the 
lands  had  actually  been  or  were  supposed  to  have  been  granted  by  the 
kino-  or  one  of  his  predecessors  to  the  tenant  or  his  ancestor),  and  that  of 
tenants  who  held  of  the  king  ut  de  lionore  (that  is,  where  the  king  was 
temporarily  or  permanently  entitled  to  the  seignory  in  his  capacity  as  lord 
paramount  by  virtue  of  escheat,  wardship,  &c.).  The  former  class  seem  to 
have  been  considered  to  be  strictly  bound  to  personal  attendance  on  the 


SECT.  II.  §  10.]  Tenures.  loi 

thereof,  to  the  amount  assessed  by  the  great  Council,  to  the 
king  by  his  own  immediate  tenants  by  knight  service,  whether 
such  tenants  were  actually  in  possession  of  the  land  or  not. 
It  further  appears  that  if  a  mesne  lord  went  with  the  king 
to  war  or  made  satisfaction  to  the  king  in  any  manner  in 
respect  of  such  service,  he  in  his  turn  might  exact  scutage 
from  his  tenants  by  knight  service  to  the  amount  assessed  by 
the  great  Council,  provided  no  tenant  had  either  by  himself 
or  by  deputy  rendered  actual  service  with  the  king  in  respect 
of  the  knight's  fee  for  which  the  scutage  was  claimed  ^. 

Henbici  de  Bracton  De  Legibns  et  Consuetudinibus  Angliae 

Ubri  quinque. 

Lib.  iv.  c.  28.  fol.  207.  Item  dicitur  liberum  tenementum, 
ad  differentiam  ejus  quod  est  villenagium  -,  quia  tenemeutorum 
aliud  liberum  aliud  villenagium. 

Item  liberorum  aliud  tenetur  libere  pro  homagio  et  servitio 
militari,  aliud  in  libero  socagio  cum  fidelitate  tantum,  vel  cum 
fidelitate  et  homagio  secundum  quosdam.  Item  liberorum 
aliud  pura  et  libera  et  perpetua  eleemosyna  ^,  quae  quidem  sunt 
tarn  in  bonis  hominum  quam  in  bonis  Dei  quia  dautur  non 
solum  Deo  et  tali  ecclesiae,  sed  abbatibus  et  prioribus  ibidem 
Deo  servientibus.  Item  est  tenementum  datum  in  liberam 
eleeniosynam  rectoinbus  ecclesiarum  quae  pura  est  et  libera  et 
magis  libera  et  pura. 

Lib.  ii.  c.  16.  fol.  37.  Item  poterit  quis  feoffari  ab  alio 
per  diversa  genera  servitiorum  facienda,  scilicet  per  servitium 

king,  the  latter  not.  Madox  (Hist,  of  Exchequer,  p.  454)  gives  two 
instances  in  the  reign  of  Edward  II  of  tenants  holding  ut  de  honorc  claim- 
ing on  that  ground  exemption  from  personal  service. 

1  A  further  exception  occurred  where  the  seignory  of  land,  the  tenants 
of  which  had  not  been  accustomed  to  render  military  service,  was  granted 
by  the  king  to  a  person  to  be  held  of  the  king  by  knight  service.  In  that 
case  the  grantee  would  be  bound  to  render  scutage,  but  could  not  in  his 
turn  exact  it  from  his  tenants.  See  the  case  of  Roger  de  Sumervill, 
37  Henry  III,  Madox,  History  of  the  Exchequer,  p.  471.  As  to  scutage 
generally,  see  Fitzherbert,  Natura  Brevium,  83,  84  a;  Wright's  Tenures, 
p.  120;  Madox,  Hist,  of  Exchequer,  c.  xvi ;  Coke  upon  Littleton,  72  b. 

^  For  the  meaning  of  villenagium  in  Bracton,  see  §  12. 

^  See  above,  Chap.  I.  p.  30, 


102  Exh'acts  from  Bradon.  [chap.  hi. 

unius  denarii,  et  reddendo  scutagium  ;  et  per  sei'iantiam  unam 
vel  plures.  Et  unde  si  tantum  in  denariis  et  sine  scutagio  vel 
seriantiis  \  vel  si  ad  duo  teneatur  sub  disjunctione,  scilicet  ad 
certam  rem  dandam  pro  omni  servitio  vel  aliquam  summani  in 
denai-iis,  id  teuementum  dici  potest  socagium.  Si  autem  super- 
addat  scutagium  et  servitium  i-egale  licet  ad  unum  obolum  vel 
seriantiam,  secundum  quod  superius  dictum  est,  illud  dici  poterit 
feodum  militare. 

Lib.  ii.  c.  1 6.  fol.  35.  Item  sunt  quaedam  servitia  quae 
pertinent  ad  dominum  capitalem,  et  quae  consistunt  in  factioni- 
bus,  et  fiuut  ex  consuetudine,  de  termino  in  terminum,  et  de 
([uibus  oportet  quod  fiat  mentio  in  scriptura'^,  et  alioquin  peti 
non  poterunt,  ut  si  dicatur  et  faciendo  inde  sectam  ^  ad  curiam 
domiui  sui  et  haeredum  suorum  de  quindena  in  quindenam,  vel 
de  tribus  septimanis  in  tres  septimanas,  quolibet  anno  de  termino 
in  terminum.  Item  faciendo  inde  tot  aruras,  et  tot  messuras, 
tot  falcationes,  et  quae  omnia  pertinent  ad  dominos  feodi  ex 
tenementis  sic  datis  liberis  hominibus,  et  proveniunt  ex  tene- 
mentis,  et  dici  possunt  feodalia  sive  praedialia  servitia,  et  non 
personalia,  nisi  ratione  praediorum  et  tenementorum.  Item 
poterit  quis  feoffare  alium  per  seriantiam  quae  quidem  multi- 
plex esse  poterit,  et  unde  quaedam  pertinent  ad  ipsum  dominum 
feoflfantem,  et  quaedam  ad  ipsum  regem,  ut  si  dicatui',  per  servi- 
tium equitandi  cum  domino  suo  vel  domina,  qui  proprie  dicun- 
tur  Rodknightes,  vel  per  servitia  teuendi  placita  dominox'um 
suorum,  vel  portaudi  brevia  infra  certa  loca,  vel  pascendi  lepo- 
rarios  et  canes,  vel  mutandi  aves,  vel  inveniendi  arcus  et  sagittas, 
vel  portandi ;  et  de  iis  seriantiis  non  poterit  certus  numerus  com- 
prehendi,  Et  hujusmodi  servitia  omnia  dici  possunt  intrinseca, 
quia  in  cbartis  et  instrumentis  sunt  exprimenda  et  dominis 
capitalibus  remanebunt.  Et  cum  propter  exercitum  regis  et 
patriae  tuitionem  non  fiunt,  ideo  ex  talibus  servitiis  nullum 
competere  deberet  maritagium,  nee  custodia  domino  capitali, 
non  magis  quam  de  socagio.  Ecce  hie  dicitur  quod  ex  parvis 
seriantiis  quae  non  respiciunt  regem  nee  pati-iae  defensionem  ■*, 

^  The  tenure  of  grand  serjeanty  was  usually,  though  not  always,  free 
from  liability  to  scutage.     Madox,  Hist.  Exch.  ch.  xvi.  p.  452. 

^  That  is,  in  the  writing  which  is  the  evidence  of  the  grant ;  see  below, 
§  II. 

'  Suit,  attendance. 
'    *  Bracton  here  uses  the  expression  'parva  seriantia'  in  a  different  sen.se 
from  that  in  which  it  was  used  by  Littleton  (section  159),  who  defines 


SECT.  II.  §  lo.]  Tenures.  103 

ut  equitare  cum  domino  vel  domiua,  et  portare  brevia  et  liuius- 
modi,  non  liabebitur  maritaglum,  cuius  contrarium  ponit  per 
exemplum.  Contrarium  autem  habetur  de  quadam  Aljbatissa 
de  Berking  inter  placita  quae  sequuntur  regem '  anno  rcgni 
regis  Henrici  coram  AV.  de  Raleighe,  et  quae  recuperavit  cus- 
todiam  et  maritaglum  de  haerede  cujusdam  tenentis  sui,  qui 
tenebat  tenementum  suum  in  manerio  de  Berking  per  servitium 
equitandi  cum  ea  de  manerio  in  manerium,  quod  quidcm 
Stephanus  de  Segrave  non  approbavit. 

Sunt  et  alia  genera  seriantiae  quae  ad  dominum  capitalem  non 
pertinent,  sed  ad  dominum  regem,  pro  exercitu  regis  ad  patriae 
tuitionem  vel  defensionem,  et  liostium  deprehensionem  -  :  ut  si 
quis  ita  feoff'atus  fuerit  scilicet  per  seriantiam  inveniendi  domino 
regi  unum  homiuem  vel  plures,  ad  eundum  cum  eo  in  expe- 
ditionem  ad  exercitum,  equites  vel  pedites,  cum  aliquo  genera 
armorum,  et  ex  tali  seriantia  competit  domino  capitali  sive  de 
domino  rege  tenuerit,  sive  de  alio,  custodia  et  maritaglum 
haeredis,  quod  quidem  non  esset  tenendum  in  casibus  praedictis. 
lUud  quidem  servatur,  si  quis  teneat  per  servitium  inveniendi 
domino  regi  certis  locis  et  certis  temporlbus  unum  hominem,  et 
unum  equum  et  saccum  cum  brochia  pro  allqua  necessitate  vel 
utilitate  exercitum  suum  contlngentem.  Item  sunt  quaedara 
servitia  quae  dicuutur  forlnseca,  quamvis  sunt  in  charta  de 
feoffamentis  expressa  et  nominata,  et  quae  ideo  dlci  possunt 
forlnseca,  quia  pertinent  ad  dominum  regem,  et  non  ad  dominum 
capitalem,  nisi  cum  in  propria  persona  profectus  fuerit  in  ser- 
vitio,  vel  nisi  cum  pro  servitlo  suo  satlsfecerlt  domino  regi 
quocumque  modo,  et  fiunt  incertis  temporlbus  cum  casus  et 
necessltas  evenerit,  et  varia  habent  nomina  et  dlversa.  Quan- 
doque  enlm  nominantur  forlnseca,  large  sumpto  vocabulo,  quoad 
servitium  domlni  regis,  quandoque  scutagium,  quandoque  ser- 
vitium dominl  regis,  et  ideo  forinsecum  dlci  potest,  quia  sit  et 
eapitur  foris  sive  extra  servitium  quod  sit  domino  capitali. 
Item  scutagium,  quod  talis  prestatio  pertinet  ad  scutum,  quod 
assumitur  ad  servitium  mllitare.  Item  dicitur  regale  servitium, 
quia  specialiter  pertinet  ad  dominum  regem  et  non  ad  allum,  et 

tenure  by  petit  serjeanty  to  be  where  land  is  held  of  the  king  by  the  duty 
of  repdering  some  small  thing,  such  as  an  arrow,  belonging  to  war. 

1  '  In  the  King's  Bench.'  The  King's  Bench  being  that  branch  or 
department  of  the  Curia  Regis  which  was  not  fixed  at  Westminster,  but 
which,  in  theory  at  least/  followed  the  king  wheresoever  he  might  be  in 
England.     This  is  still  the  proper  style  of  the  Court. 

*  See  above,  p.  28. 


104  Extracts  from  Bracion.  [chap.  hi. 

secundum    quod  in   conquestu  fuit   adinventum,  et  hujusmodi 
servitia  persolvuntur  ratione  tenenientorum  et  non  personainim, 

quia  ex  tenementis  proveniunt Et  quia  tale  ser- 

vitium  forinsecum  non  semper  manet  sub  eadem  quantitate,  sed 
quandoque  praestatur  ad  plus,  quandoque  ad  minus,  ideo  de 
qualitate  regalis  servitii  et  quantitate  fiat  mentio  in  cliarta,  ut 
tenens  certum  tenere  possit  quid  et  quantum  persolvere  teneatur : 
quod  quidem  dici  poterit  de  sectis,  quae  pertinent  ad  dominum 
capitalem,  cum  possint  ibi  varia  et  diversa  tempora  denotari,  de 
quibus  fit  mentio  supra.  Sed  si  sic  dicatur,  reddendo  inde  per 
annum  tantum  et  faciendo  tales  sectas  pro  omni  servitio,  excepto 
regali  servitio,  vel  salvo  forinseco,  tunc,  videndum  erit  imprimis 
si  feodum  illud  in  ipsa  donatione  forinsecum  debuit  ab  initio  vel 
non.  Si  autem  nullum  debuit  ab  initio,  nee  sit  certum  forin- 
secum in  charta  expressum,  nunquam  praestabitur,  nee  peti 
poterit  propter  incertitudinem.  Si  autem  ab  initio  nullum  sed 
in  ipsa  donatione  convenerit  quod  detur  scutagium,  et  in  charta 
exprimatur  certum,  erit  omnino  praestandum.  Et  sicut  poterit 
donator  liberius  donare  quam  ipse  tenuerit,  et  onerare  seipsum 
et  haeredes  suos  ei'ga  sues  feoffatores,  ita  poterit  suum  feoffatum 
onerare  ad  plura  servitia  et  ad  alia,  quam  ipse  teneatur  feoffa- 
tori  suo.  Poterit  enim  de  socagio  facere  servitium  militare,  et  e 
converso,  si  ita  convenerit  inter  ipsum  et  feoffatum  suum.  Sed 
quid  si  feodum  feoffatoris  non  debeat  forinseciim,  et  donator 
dederit  pro  forinseco,  tunc  refert  utrum  certum  et  expressum 
vel  non.  Si  autem  incertum,  tunc  tale  quid  peti  non  poterit,  si 
autem  forinsecum  debuit  ab  initio,  sed  tamen  in  charta  donatoris 
non  exprimatur  certum,  videtur  prima  facie  quod  peti  non 
potest.  Sed  revera  sic  erit  intelligendum,  quod  tale  et  tantun- 
dem  pi-aestandum  sit  quantum  praestant  alii  qui  tenent  tenementa 
in  eadem  villa,  et  de  eodem  feodo  per  servitium  militare. 


§  1 1 .  .4  Common-Law  Conveyance  of  a  Freehold  Estate. 

( I )  A   Charter  of  Feoffment. 

The  ordinary  mode  of  granting  an  estate  of  freehold  was  by 
the  process  called  a  feofiment.  A  feoffment,  as  has  been  seen  \ 
consists  of  two  parts.  There  must  be  ( i )  words  of  donation  ex- 
pressing the  nature  and  extent  of  the  intei-est  to  be  taken  by  the 

'  See  above,  Chap.  I.  p.  50. 


SECT.  II.  §  II.]     ^  Common-Laiv  Convei/ance.  105 

feoffee,  (2)  livery  of  seisin,  the  ceremony  fixed  upon  by  law  as 
that  which  is  essential  to  pass  the  seisin,  or  possession  as  of 
freehold,  from  the  feoffor  to  the  feoffee. 

The  following  extract  is  the  specimen  Bracton  gives  of  a 
charter  of  feoffment.  Though  it  was  by  no  means  necessary 
that  the  words  of  donation  should  be  embodied  in  writing,  it 
was  usual,  for  the  obvious  object  of  preser\dng  evidence  of  the 
grant,  that  a  charter  or  deed  of  feoffment  should  be  executed.  A 
writing  was  not  made  an  essential  part  of  a  feoffment  till  the 
Statute  of  Frauds  ^ 

Bracton,  lib.  ii.  c.  14.  fol.  35.  Fit  autem  donatio  in  scrip- 
tura  per  haec  verba.  Sciant  praesentes  et  futuri  quod  ego  talis 
dedi  et  concessi  et  hac  praesenti  charta  mea  confirmavi  tali,  pro 
homagio  et  servitio  suo,  tantam  terram  cum  pertinentiis  in  tali 

villa libere    et    quiete habendam    et    tenen- 

dara  tali  et  haeredibus  suis  (generaliter  vel  cum    coarctatione 

haeredum^) vel  assignatis^ reddendo  inde  per 

annum  tantum  ad  certos  terminos  tales,  et  faciendo  inde  talia 

servitia  et  tales  consuetudines pro  omni  servitio  con- 

suetudine  seculari  exactione  et  demanda,  (per  quam  generalitatem 
videtm-  expresse  remittere  omnia  alia  servitia,  consuetudines  et 
demandae  seculares,  quae  ad  domiuum  pertinent  de  tenemento, 
licet  hoc  in  charta  expresse  non  contineatur). 


(2)  Livery  of  Seisin. 

In  the  following  passage  Bracton  imports  certain  doctrines 
from  the  civilians,  especially  from  Azo  *,  bearing  on  the  doctrine 
of  possession,  and  applies  them  to  the  doctrine  of  livery  of  seisin, 
which  was  the  appropriate  mode  of  transferring  a  freehold  in- 
terest in  lands  from  one  person  to  another. 

In  order  to  acquire  possessio  two  elements  are  necessary  :  (i ) 
the  consciousness  of  actual  or  possible  physical  control  of  the 

*  29  Car.  II.  c.  3.  *  See  below,  Chap.  IV.  §  3. 
^  For  the  effect  of  these  words  see  below,  §  14. 

*  See  Giiterbock,  H.  de  Bracton  und  sein  Verhaltniss  zum  Romischen 
Rechte,  pp.  59-70,  and  compare  with  the  whole  of  the  following  extract  the 
title  in  the  Digest  de  Acquirenda  vel  Amittenda  Possessione,  lib.  xli.  tit.  ii. 


io6  'Extracts  from  Bracton.  [chap.  hi. 

thing  which  is  the  subject  of  acquisition  ;  (2)  the  animus  sibi 
hahendi.  The  application  of  the  rules  relating  to  the  delivery  of 
possessio  gave  rise  to  the  feudal  notion  of  investiture  \ — the 
clothing  the  donee  with  the  actual  possession  of  the  land  the 
subject  of  the  grant. 

Since,  as  has  been  seen,  freehold  intei'ests  in  land  were 
formerly  the  only  interests  known  to  the  law,  a  grant  of  land  is 
synonymous  with  a  grant  of  a  freehold  interest  in  land,  and 
the  doctrines  of  Roman  law  as  to  conveying  things  moveable 
by  traditio,  and  things  immoveable  by  allowing  the  donee  to 
enter  on  the  vacant  possession,  gave  rise  to  the  principle  that 
for  passing  a  freehold  intei'est  in  lands  a  ceremony  was  necessary 
by  which  the  possession  of  the  land  itself  should  be  given  to  the 
donee.  This  was  livery  or  delivery  of  the  seisin  or  possession  of 
the  land,  and  was  effected  either  by  the  donor  himself  or  his 
deputy.  "What  did  and  what  did  not  amount  to  'livery  of 
seisin '  now  becomes  a  curious  question.  Speaking  generally,  it 
must  be  the  delivery  of  something,  such  as  a  clod  of  earth  or 
a  twig,  on  the  land  in  the  name  of  the  whole,  or  it  was  sufficient 
if  the  two  parties  were  actually  present  on  the  land  and  the  one 
by  word  or  act  gave  possession  to  the  other.  It  was  even 
effectual  for  the  donor  to  bring  the  donee  within  sight  of  the 
land  and  to  give  him  authority  to  enter,  provided  this  were 
followed  by  the  entry  of  the  donee  during  the  lifetime  of  the 
donor  '^. 

Great  importance  was  attached  to  the  notoriety  of  the  trans- 
actiqn.  That  all  the  neighbours  might  know  that  A  was  tenant 
to  B  from  the  fact  that  open  livery  of  seisin  had  been  made  to 
him,  was  of  the  utmost  importance  to  B  in  order  to  protect  and 

^  See  Spelman,  sub  voce. 

^  See  Coke  upon  Littleton,  48  b  ;  wliere  with  characteristic  refinement 
he  distinguishes  between  livery  in  deed,  or  actual  delivery  of  possession, 
and  livery  in  law,  where  the  transaction  does  not  take  place  upon,  but  in 
sight  of,  the  land,  and  is  followed  by  the  entry  of  the  feoffee.  In  the  case  of 
livery  not  upon  the  lands,  if  the  feoffee  was  prevented  by  violence  or  threats 
from  entering,  his  estate  might  become  completely  vested  by  making  in 
proper  form  every  year  'continual  claim.'     See  Littleton,  lib.  iii.  c.  7. 


SECT.  II,  §  II-]  Liver ij  of  Seisin.  107 

to  enable  him  to  assert  his  rights  as  lord.  For  in  case  of  dispute 
as  to  the  title  to  the  lands,  or  the  right  to  services,  aids  or  reliefs, 
the  fact  of  this  open  and  notorious  livery  of  seisin  enabled  the 
lord  to  appeal  to  the  tribunal  before  which,  since  the  reforms 
of  Henry  II,  suits  relating  to  land  were  commonly  decided, 
— the  verdict  of  twelve  legales  homines  de  vicineto,  who  would 
know  themselves  or  have  heai'd  from  their  fathers  the  truth  of 
the  matter. 

Bracton,  lib.  ii.  c.  18.  fol.  39.  Item  non  valet  donatio  nisi  sub- 
sequatur  traditio,  (juia  non  transfertur  per  homagium  res  data, 
nee  per  chartai-um  vel  instrumentoruni  confectionem,  quamvis  in 
publico  fuerint  recitata.  Item  neque  per  imaginariam  traditio- 
nem  ubi  corpore  recedit  et  animo  retinet  possessionem,  et  vult 
potius  quod  res  data  cum  eo  remaneat,  quam  transeat  ad  dona- 
torium,  et  unum  agit  et  alterum  agere  simulat,  sed  tunc  demum 
cum  donator  pleuam  fecerit  seisinam  donatorio  per  se  si  praesens 
fuerit,  vel  per  procuratorem^  et  litteras  si  absens  fuerit  in  ipsa 
traditione,  sine  aliqua  spe  et  animo  revertendi,  ut  dominup,  et 
cum  donatorius  in  possessione  vacua  extiterit  corpore  et  animo  ^, 
et  cum  voluntate  retinendi  possessionem,  et  quod  unus  desinat 
et  alius  incipiat  possidere,  quia  donator  nunquam  desinit  possi- 
dere,  donee  donatorius  plenarie  fuerit  in  seisina,  nee  jacebit 
seisiua  aliquo  tempoi-e  medio  vacua  ^.  Videndum  est  primo  quid 
sit  traditio  ;  et  est  traditio  de  re  corporali  propria  vel  aliena  de 
persona  in  personam  de  manu  propria  vel  aliena  sicut  procura- 
toria,  dum  tamen  de  voluntate  domini,  in  alterius  manum  gra- 
tuita  *  translatio.  Et  nihil  aliud  est  traditio  in  uno  sensu  nisi 
in  possessionem  inductio  de  re  corporali^,  ideo  dicitur  quod 
res  incorporalis  non  patitur  traditioncm  ;  sicut  ipsum  jus  quod 

*  Compare  Dig.  lib.  xli.  tit.  ii.  i.  §  20. 

^  Compare  the  texts  of  Roman  law  :  '  Adipisciraur  possessionem  corpore 
et  animo  neque  per  se  animo  aut  per  se  corpore  ;'  Dig.  lib.  xli.  tit.  ii.  3. 
§  I  :  '  Nulla  possessio  adquiri  nisi  animo  et  corpore  potest ;'  lb.  8. 

'  For  the  bearing  of  this  principle  that  the  freehold  can  never  be  in 
abeyance  upon  the  rules  of  law  relating  to  the  conveyance  of  rights  of 
future  enjoyment,  see  below,  Chap.  V.  §  3. 

*  Compare  fol.  13 :  '  Item  gTatuita  debet  esse  donatio  et  non  coacta  nee 
per  metum  vel  vi  extorta.' 

5  Compare  Dig.  lib.  xli.  tit.  ii.  33  :  'Fundi  venditor  etiamsi  mandaverit 
alicui,  ut  emptorem  in  vacuam  possessionem  induceret,  priusquam  id  fieret, 
non  recte  emptor  per  se  in  possessionem  veniet.' 


io8  Extracts  from   Bradon.  [chap.  iii. 

rei  sive  coi-pori  inhaeret,  et  quia  non  possunt  res  incorporales 
possideri  sed  quasi,  ideo  trail itionem  non  patiuntur  sed  quasi, 
nee  adquiruntur  nee  retinentur  nisi  per  patientiam  et  usum-'. 
De  re  propria  vel  aliena  ideo  dicit,  quod  refert  quis  traditionem 
facere  possit,  et  sciendum  quod  omnes  qui  donationem  etc. 
sive  sit  domiuus  sive  non  dominus.  Si  autem  fiat  traditio 
a  vero  domino,  statim  et  sine  mora  incipit  donatorius  habere 
liberum  teuementum,  propter  conjunctionem  juris  et  seisinae 
et  mutuum  utriusque  partis  consensum ;  .  et  sufficit  semel 
voluisse  in  ipsa  traditione  vel  post  traditionem,  et  quia  res  quae 
traditione  nostrae  fuerint,  jure  gentium  nobis  acquiruntur. 
Nihil  enim  tarn  conveniens  est  naturali  aequitati  quam  desiderium 
domini  volentis  in  alium  rem  suam  transferre  ratum  habere^. 
Et  nihil  interest  an  ipse  dominus  per  se  tradat  alicui  rem 
suam  datam,  an  alius  voluntate  ipsius  sicut  per  procuratorem,  si 
ipse  praesens  non  fuerit,  vel  per  nuntium,  cum  Uteris  tamen  pro- 
curatoriis  patentibus,  ut  supradietum  est,  in  parte  eontinentibus 
voluntatem  ipsius  donatoris.  Et  in  quo  casu  ostendantur  lit- 
terae  et  charta,  ut  dici  poterit,  talis  habuit  et  breve  et  charta, 
secundum  quod  Anglice  dicitur,  hee  had  bothe  writ  and  charter. 
Et  sive  fiat  traditio  per  ipsum  dominum  vel  per  procuratorem, 
et  si  cui  fieri  debeat  traditio  de  aliqua  domo  per  se,  vel  messuagio 
ratione  alicujus  fundi,  eo  animo  ut  donatorius  totum  fundum 
possideat  usque  ad  certos  terminos,  cum  omnibus  juribus  et  per- 
tinentiis  suis,  et  ubi  non  est  necesse  omnes  glebas  circumire,  nee 
ubique  nee  undique  pedem  ponere,  fieri  debet  traditio  per  ostium 
et  per  haspam  vel  anulum,  et  sic  erit  in  possessione  de  toto  ex 
voluntate  et  aspectu  et  possidendi  affectu  ^.  Si  autem  nullum 
sit  ibi  aedificium,  fiat  ei  seisina,  secundum  quod  vulgariter  dicitur, 
per  fustim  et  per  baculum,  et  sufficit  sola  pedis  positio  cum  pos- 
sidendi aftectu  et  voluntate  donatoris,  quamvis  statim  expletia  * 

'  Af3  to  the  modes  of  acquiring  incorporeal  hereditaments,  see  below, 
§  17  (1).  On  the  doctrine  of  the  Roman  lawyers  as  to  quasi  possessio  or 
possession  in  an  analogous  sense  of  incorporeal  things,  or  rights  over  the 
property  of  another,  see  Saviguy's  Treatise  on  Possession,  translated  by 
Sir  E.  Perry,  pp.  1 30-134. 

^  Taken  from  the  Institutes  of  Justinian,  ii.  i.  §  40. 

^  '  Quod  autem  diximus  et  corpore  et  animo  adquirere  nos  debere  posses- 
sionem, non  utique  ita  accipiendum  est,  ut  qui  fundum  possidere  velit 
omnes  glebas  circumambulet ;  sed  sufficit  quamlibet  partem  ejus  fundi 
introire,  dum  raente  et  cogitatione  hac  sit,  uti  totum  fundum  usque  ad  ter- 
minum  velit  possidere.'     Dig.  xli.  ii.  3.  §  i. 

*  Expletia,  '  esplees,'  or  produce. 


SECT.  II.  §  12.]  Villenag'ium.  J09 

non  ceperit,  poterit  enini  habere  quis  liberura  tenementum  ex 
traditione,  quamvis  statim  uon  utatur,  nee  expletia  capiantur, 
quia  iisus  et  expletia  non  multum  operantur  ad  donationem. 
Valcnt  tamen  multotiens  ad  possessionis  declarationem,  et  dici 
poteruut  vestimenta  donatiouum  sicut  traditio. 


Item  sufficit  pro  traditione  corporali  nuda  voluntas  domini  ad 
alium,  quasi  mutata  causa  possessionis,  dum  tamen  fiat  cum 
solemnitate  quod  probatio  non  deficiat  ;  ut  si  quis  rem  alicui 
locaverit  vel  concesserit  ad  terminum  vitae  vel  annorum,  et 
postea  eidem  vendiderit  vel  donaverit,  licet  eam  ex  tali  causa 
primo  non  habuei'it,  eo  tamen  quod  ipse  dominus  patitur  eam 
ex  tali  causa  vel  alia  quacunque  apud  eum  esse,  sua  efficitur "-. 
Eodem  modo  si  ex  nulla  justa  causa  praecedente,  sed  per  in- 
trusionem  vel  disseisinam  sit  aliquis  in  possessione  rei  alterius, 
et  velit  dominus  proprietatis  quod  sua  sit,  sua  erit,  quamvis 
possessio  apud  verum  dominum  non  fuerit  :  fingitur  enim  per 
voluntatem  domini,  quod  res  quasi  ex  eo  et  per  manum  suam  ad 
detentorem  pervenerit,  possessio  et  dominium  ^. 


§  12.    Villenagium.     Non-free  Tenure. 

In  early  times,  as  has  before  been  said,  only  freemen  held 
property  in  land.  Every  person  having  an  interest  recognised 
and  protected  by  law  is  of  necessity  a  freeholder.  The  prac- 
tice however  of  allowing  villeins  to  continue  to  occupy  their 
land  without  interruption,  and  even  to  alienate  and  transmit 
their  interest  to  their  descendants,  has  given  a  new  sense  to  the 
word  villenagium,  which  now  comes  to  mean  ( i )  the  nature  of  a 

*  Compare  Dig.  xli.  ii.  3.  §  19  :  '  Illud  qiioque  a  veteribus  praeceptum  est 
neminem  sibi  ipsuni  causani  possessionis  mutare  posse.  Sed  si  is,  qui  apud 
me  deposuit  vel  commodavit,  eam  rem  vendiderit  mihi  vel  donaverit,  non 
videbor  causam  possessionis  milii  mutare,  qui  ne  possidebam  quidem.'  Com- 
pare too  the  mode  of  conveyance  by  lease  and  release,  i.e.  where  the  lessee 
was  in  possession  of  land  under  a  lease  for  years  and  then  the  lessor  re- 
leased the  reversion  to  him  Ijy  deed.     See  below,  Chap.V.  §  i. 

^  That  is,  a  disseisor  who  was  in  by  wrong  might,  since  he  had  actuall}' 
the  seisin,  accept  a  relea.se  of  the  rights  of  the  disseisee  (the  rightful  owner), 
and  so  acquire  an  indefeasible  estate  (see  Blackstone,  ii.  p.  324). 


110  Extracts  from  Bradon.  [chap.  hi. 

villein's  interest  in  land,  (2)  the  kind  of  interest  which  a  villein 
has,  though  the  land  is  held  by  a  freeman.  Though  there  is 
some  distinction,  as  pointed  out  in  the  text,  between  the  rights 
which  the  lord  would  have  against  a  villein  and  against  a  free- 
man holding  in  villenage,  they  resemble  each  other  in  this,  that 
both  hold  at  the  will  of  the  lord  and  can  be  turned  out  of  the  oc- 
cupation of  the  land  by  him  at  any  moment.  Neither  therefore 
can  bring  an  assize,  for  this  is  a  I'emedy  applicable  only  to  the 
freehold.  There  is  nothing  however  to  prevent  the  lord  entering 
into  a  covenant  with  his  villein,  or  freeman  holding  in  villenage, 
to  secure  the  continued  enjoyment  of  the  tenure.  This  covenant 
can  be  enforced  by  the  villein,  or  freeman  holding  in  villenage, 
and  it  appears  that  by  a  writ  of  covenant  the  vilhnagium 
itself  might  be  recovered.  This  is  the  first  step  towards  the 
legal  recognition  of  estates  in  copyhold,  exactly  identical,  as 
will  be  seen,  with  the  first  step  in  the  legal  recognition  of 
leasehold  interests.  At  this  time  the  villein,  or  the  freeman 
folding  in  villenage  (except  when  he  is  jirotected  by  an  express 
covenant  under  seal  entered  into  by  the  lord),  holds  strictly 
at  the  will  of  the  lord.  The  only  restraints  upon  the  will  of 
the  lord  are  those  imposed  by  custom  and  moral  or  religious 
sanctions.  The  steps  by  which  these  customary  pi*actices  gra- 
dually came  to  be  recognised  and  enforced  in  courts  of  justice, 
and  grew  into  legal  rights,  will  be  noticed  in  the  fifth  chapter. 

Bracton,  lib.  iv  cap.  28.  fol.  208.  Item  tenementorum  aliud 
villenagium,  et  villenagioinim  aliud  purum  aliud  privilegiatum. 
Purum  autem  villenagium  est,  quod  sic  tenetur,  quod  ille  qui  tenet 
in  villenagio,  sive  liber  sive  servus,  faciet  de  villenagio  quicquid  ei 
praeceptum  fuerit,  uec  scire  debeat  sero  quid  facere  debeat  in  cras- 
tino,  et  semper  tenebitur  ad  incerta.  Talliari  ^  autem  potest  ad 
voluntatem  domini  ad  jjlusvel  ad  minus.  Item  dare  merchetum^ 
ad  filiam  maritandam,  et  ita  semper  tenebitur  ad  incerta ;  ita 
tameu  quod  si  liber  homo  sit,  hoc  faciat  nomine  villenagii  et 
non  nomine  personae^,  uec  euim    tenebitur   ad  merchetum  de 

^  '  He  is  liable  to  be  taxed.' 

^  'He  pays  a  fine  for  the  privilege  of  giving  his  daughter  in  marriage.' 

^  '  As  an  incident  of  liis  tenure,  not  of  personal  servitude.' 


SECT.  II.  §  12.]  Villenagium.  iii 

jure,  quia  hoc  non  pertinet  ad  personam  liberi  sed  villani.  Si 
autem  villanus  fuerit,  omnia  faciat  et  incerta  tam  ratione 
villenagii  quara  personae,  uec  liber  homo,  si  sic  tenuerit,  contra 
voluntatem  domini  villenagium  retinere  poterit,  nee  ipse  com- 
pelli  quod  retiueat  nisi  velit.  Est  etiam  villenagium  non  ita 
purum  sive  concedatur  libero  homini  vel  villano  ex  conventione  ^ 
tenendum  pro  certis  servitiis  et  consuetudinibus  nomiuatis  et 
expressis,  quamvis  servitia  et  consuetudines  sunt  villanae.  Et 
unde  si  liber  ejectus  fuerit,  vel  villanus  manumissus  vel 
alienatus,  recuperare  non  poterunt  ut  liberum  tenementum  cum 
sit  villenagium,  et  cadit  assisa,  vertitur  tamen  in  juratam-  ad 
inquirendum  de  conventione,  propter  voluntatem  dimittentis  et 
consensum,  quia  si  querentes  in  tali  casu  recuperaverint  villena- 
gium^, non  erit  propter  hoc  domino  injuriatum  propter  ipsius 
voluntatem  et  consensum,  et  contra  voluntatem  suam  jura  ei 
non  subveuiunt,  quia  si  dominus  j^otest  villanum  mauumittere 
et  feoffare,  multo  potius  poterit  ei  quandam  conventionem  facere, 
et  quia  si  potest  id  quid  plus  est,  potest  multo  fortius  id  quod 
minus  est.  Est  etiam  aliud  genus  villenagii  quod  tenetur  de 
domino  rege,  a  conquestu  Angliae,  quod  dicitur  socagium  villa- 
num, et  quod  est  villenagium,  sed  tamen  privilegiatum ''.  Habent 

^  Conventio,  '  covenant,'  i.e.  agreement  by  deed  under  seal,  i.e.  writing 
on  paper  or  parchment  sealed  and  delivered.  Breve  de  conventione,  '  writ 
of  covenant.'  Breach  of  a  covenant  always  was  a  ground  for  an  action  at 
law. 

^  That  is,  the  re30gnitors  of  the  assize  who  had  been  summoned  to  decide 
the  questions  raised  in  the  Assize  of  Novel  Disseisin  (see  above,  p.  8i)  were 
turned  into  a  jury  to  determine  on  the  fact  of  the  existence  of  the  alleged 
covenant.  At  this  time  the  practice  of  determining  questions  by  the  voice 
of  the  recognitores  of  the  assize  was  developing  into  trial  by  jury  in  civil 
proceedings  generally.     See  Reeves,  i.  p.  354. 

^  From  this  it  appears  that  by  this  form  of  action  the  villenagium  itself, 
i.e.  the  right  to  hold  the  land  under  the  obligation  to  render  the  accustomed 
services,  could  be  recovered. 

*  This  tenure  is  that  from  which  the  species  of  copyhold  tenure  known 
as  tenure  in  'ancient  demesne  '  derived  its  origin.  See  Blackstone,  ii.  p.  98. 
The  variety  of  customs  prevailing  in  various  districts  gave  rise  to  various 
species  of  tenure,  which  later  lawyers  found  a  difficulty  in  classifying.  We 
find  in  later  times  that  it  was  sometimes  a  matter  of  dispute  whether  a 
particular  tenure  was  freehold  or  copyhold.  Coke  (Compleat  Copyholder), 
xxxii,  speaks  of  '  copyholds  of  frank -tenure  whicli  are  most  usual  in  ancient 
demesne.  Though  sometimes  out  of  ancient  demesne  we  shall  meet  with  tlie 
like  sort  of  coi)yholds,  as  in  Northamptonshire  there  are  tenants  which  hold 


113  Extracts  from  Bracton.  [chap.  iii. 

itaque  tenentes  de  dominicis  domini  regis  tale  privilegium,  quod 
a  gleba  amoveri  non  debent,  cj[uamdiu  velint  et  possint  facere 
debitum  servitium,  et  hujusmodi  villani  sokmanni  proprie  di- 
cuntur  glebae  ascripticii.  Villana  autem  faciunt  servitia  sed 
certa  et  determinata.  Nee  compelli  poterunt  ad  tenenda  hujus- 
modi tenementa,  et  ideo  dicuntur  liberi.  Dare  autem  non 
possunt  tenementa  sua,  nee  ex  causa  donationis  ad  alios  trans- 
ferre,  non  magis  quam  villani  puri,  et  unde  si  transferri  debeant, 
restituunt  ea  domino  vel  ballivo,  et  ipsi  ea  tradunt  aliis  in 
villenagium  tenenda\ 


§  13.  Alienaticm. 

It  appears  that  about  the  time  of  the  passing  of  the  provi- 
sions quoted  above  ^  from  Magna  Carta,  strenuous  attempts  were 
made  in  the  interest  of  the  gi'eat  lords  to  prevent  a  tenant 
alienating  any  part  of  his  land.  These  attempts  however,  as 
appears  from  the  following  passage,  were  not  successful.  The 
provision  in  Magna  Carta  given  above  appears  to  be  the  only- 
restraint  upon  alienation  of  lands  in  fee  simple  ever  recog- 
nised by  law  in  the  interests  of  the  lord.  When  lands  were 
held  of  a  mesne  loi'd,  the  effect  of  this  provision  seems  to 
have  been  that  if  the  lands  were  alienated  contrary  to  the 
statute  the  heir  of  the  alienor  might  enter  upon  the  alienee 
and  defeat  his  estate^.  This  it  was  hoped  would  prevent 
alienations  of  portions  of  the  laud  to  the  damage  of  the 
interests  of  the  lord.  The  law  as  to  alienation  in  the  case 
of  lands  held  immediately  of  the  king  was  different*.  The 
subject  is  very  obscure,  but  it  appears  probable,  as  is  asserted 

by  copy  of  court  roll,  and  have  no  other  evidence,  and  yet  hold  not  at  the 
will  of  the  lord.  These  kind  of  copyholders  have  the  frank -tenure  in  them, 
and  it  is  not  in  their  lords,  as  in  case  of  copyholds  of  base  tenure.' 
See  Blackstone's  tract,  '  Considerations  on  Copyholds ; '  and  see  below. 
Chap.  V.  §  6. 

*  See  as  to  the  mode  of  alienating  copyholds,  Chap.  V.  §  6. 

*  Cap.  xxxix.  (ed.  121 7).     See  above,  p.  97. 
'  Coke,  2  Inst.  p.  66. 

*  lb.  p.  65. 


SECT.  II.  §  13.]  Alienation.  113 

by  Sir  E.  Coke  in  his  notes  on  the  passage  of  Magna  Carta, 
that  before  the  reign  of  Henry  III  there  was  no  greater 
restraint  on  the  alienation  of  lands  held  in  fee  of  the  Crown 
than  in  the  case  of  lands  held  of  a  mesne  lord ;  that  about  this 
time  it  was  established  (whether  by  this  jirovision  of  Magna 
Carta,  as  Sir  E.  Coke  thinks,  or  not  is  doubtful,)  that  the  lands 
held  immediately  of  the  king  could  not  be  alienated  without 
incurring  liability  to  a  fine  for  a  licence  of  alienation.  It  con- 
tinued for  a  long  time  to  be  a  question  whether  such  an  alienation 
of  lands  without  licence  was  a  cause  of  forfeiture  to  the  Crown, 
or  whether  the  king  could  only  distrain  for  the  fine.  This  doubt 
was  set  at  rest  by  i  Edward  III,  st.  2,  c.  12,  by  which  it  was 
provided  that  an  alienation  without  licence  of  lands  held  of 
the  king  in  chief  should  not  be  a  cause  of  forfeiture,  but  a 
reasonable  fine  should  be  taken  in  the  Chancery  by  due  process. 
Henceforth  for  a  licence  of  alienation  by  a  tenant  in  capite  the 
king  was  held  to  be  entitled  to  a  third  part  of  the  value  of  the 
land,  and  for  a  fine  upon  alienation  without  licence  to  one 
year's  value.  These  fines  upon  alienation  were  abolished  by  1 2 
Car.  II,  c.  29  ^. 

Bracton,  lib.  ii.  cap.  19.  fol.  45.  Sed  posset  aliquis  dicere 
quod  ex  hoc  quod  donatorius  ulterius  dat  et  transfert  rem 
donatam  ad  alios,  quod  hoc  facere  uon  potest,  quia  per  hoc 
amittit  domiuus  servitiuin  suum,  quod  quidem  non  est  verum, 
salva  pace  et  reverentia  capitalium  dominorum.  Et  generaliter 
verum  est,  quod  donatorius  rem  et  terram  sibi  datam  donare 
j)oteint  cui  voluerit,  nisi  ad  hoc  specialiter  agatu.r  in  possessione 
ne  possit.  Cum  enim  quis  tenementum  dederit,  certum  dat 
tenementum  tali  modo,  ut  certas  consuetudines  recipiat  et 
cei'tuni  servitium,  secundum  quod  superius  dictum  est.  Et 
unde  de  jure  plus  petere  non  poterit,  si  habuerit  quod  convenit, 
et  sic  tollat  quod  suum  fuerit  et  vadat.  Non  enim  fit  donatio 
tali  modo  quod  habeat  custodiam  terrae  et  haeredis  maritagium, 
sed  quod  habeat  homagium  et  servitium,  sed  cum  homagium 
habuerit  et  tale  debeatur  forinsecum  servitium,  quod  domino 
capitali,  debeatur  relevium,  et  custodia  terrae,  et    maritagium 

*  See  First  Report  on  the  Dignity  of  a  Peer,  pp.  398-400,  and  for  the 
later  history  of  the  law  of  alienation  of  lands,  see  below.  Chap.  IV,  §  5. 

I 


114  Extracts  from  Brad  on.  [chap.  m. 

haeredis  cum  evenerint,  et  quae  sequuntur,  forinsecum  sicut 
servitium  doraini  regis,  nunquam  tamen  habebit  dominus  capi- 
talis  ista  simul,  sed  unum  istorum  tantum,  cum  evenerit,  aut 
relevium,  aut  custodiam,  et  haeredis  maritagium.  Et  bene 
}3oterit  esse  quod  unum  istorum  semper  eveniet,  et  aliud  nun- 
quam :  et  unde  si  dominus  tantum  relevium  habeat,  et  teneat 
iude  se  coutentum,  quamvis  plus  valeant  custodia  et  haeredis 
maritagium,  et  quia  ubi  quis  tenetur  ad  duo  sub  disjunctione, 
unum  solvendo  vel  faciendo  liberatur,  et  imde  cum  quis  capitalis 
dominus  tenentem  suum  impedierit  quod  dare  non  possit,  facit 
ei  injuriam  et  disseisinam  apertam,  ex  quo  ilium  re  sua  et 
seisina  uti  non  permittit.  Tenens  vero  nullam  facit  injuriam 
domino  suo  ex  tali  donatione,  quamvis  damnum,  cum  ipse 
dominus  habere  possit  relevium  de  suo  feofFato  et  ejus  haeredi- 
bus,   et  licet    damnum  facit,  non  tamen  injuriosum  erit   prae- 

dicta  ratione 

Si  tenens  mens  fecerit  donationem  quaeritur  cui  faciat 
injuriam ; — non  domino,  quia  dominus  habet  quicquid  pertinet 
ad  ipsum  et  tenementum  obligatum  et  oneratum,  quicquid 
dicatur,  et  ad  quemcunque  perveuerit.  Item  nee  feoffVitus, 
quia  nihil  ad  capitalem  dominum  quicunque  feodum  suum 
tenuerit,  cum  tenens  sit  tenens  suus  quamvis  per  medium. 
Item  si  dicat  quod  injuste  ingressus  est  feodum  suum,  dice  non, 
quia  non  est  feodum  suum  in  dominico  sed  tenentis  illius,  et 
dominus  nihil  habet  in  feodo  nisi  servitium,  et  sic  erit  feodum 
tenentis  in  dominico,  et  feodum  domini  in  servitio,  et  si  dominus 
prohibuerit  ne  tenens  faciat  voluntatem  suam  de  tenemento  suo 
quod  tenet  in  dominico,  sic  intrat  dominus  in  tenementum 
tenentis  sui  et  fticit  ei  disseisinam  ;  nisi  modus  vel  conventio  in 
ipsa  donatione  acljecta  aliud  inducat,  cum  quilibet  possit  modum 
et  conditionem  in  donatione  sua  apponere,  et  legem  quae  semper 
observabitur ' . 

Lib.  ii.  cap.  35.  fol.  8i.  Item  eodem  modo    .     .    poterit    .     .     . 

homacium dissolvi  et  extingui  in  persona  tenentis 

et  convalescere  in  persona  alterius,  ut  si  tenens,  cum  homagium 
fecerit  domino  suo,  se  dimiserit  ex  toto  de  haereditate  sua  et 
alium  feoffaverit  tenendum  de  domino  capitali,  et  quo  casu  tenens 
absolvitur  ab  homagio  et  extinguitur  homagium,  velit  nolit  do- 

*  By  the  time  of  Littleton  (see  sect.  360)  this  condition,  imposing  a  re- 
straint on  alienation,  was  held  illegal.  A  partial  restraint  however  was 
still  permitted.  In  Bracton's  time  such  restrictions  were  not  uncommon, 
especially  '  vii-is  religiosis  et  Judaeis.'     See  fol.  13. 


SECT.  II.  §  14.]         Burailon  of  jEstaies.  115 

minus  capitalis,  et  incipit  in  persona  feoflfati  qui  obligatur,  propter 
tenementum  quod  tenet,  quod  est  feodum  domini  capitalis  ^. 

§14.  Differences  of  Freehold  Estates  in  respect  of  tlieir  Dura- 
tion. Estates  of  Freehold  and  Estates  less  than  Freehold. 
Conditional  Gifts. 

As  the  necessary  connexion  between  the  personal  status  of 
freedom  and  the  holding  of  land  comes  to  be  of  less  importance, 
the  word  '  freehold '  gradually  loses  its  original  signification, 
and  is  confined  to  what  was  before  only  one  of  the  principal 
attributes  of  freehold  tenure.  When  the  rights  over  the  laud 
are  given  for  a  period  the  tei'mination  of  which  is  not  fixed 
or  ascertained  by  a  specified  limit  of  time,  the  interest  is  a  free- 
hold interest.  This  is  the  usual  sense  of  the  word  '  freehold ' 
at  the  present  day  when  opposed  to  '  leasehold  '  tenure.  A  trace 
of  the  older  meaning  remains  in  the  opposition  of  '  freehold ' 
to  '  copyhold  '  tenure  ^. 

In  the  latter  part  of  the  following  passages  we  find  the 
groundwork  of  lesfal  doctrines  which  attained  afterwards  to 
great  complication  and  technicality,  but  which  are  compara- 
tively plain  as  laid  down  by  Bracton.     These  are —  ' 

(i)  That  a  gift  to  A  and  his  heirs  is  a  donatio  simplex  et  pura 
as  opposed  to  a  conditional  gift,  that  under  such  a  gift  the  donee  A 
takes  (to  use  the  later  expression)  '  by  purchase,'  ex  causa  dona- 
tionis,  but  that  upon  his  death  his  heir  takes  by  descent,  that  is, 
not  directly  from  the  donor,  but  as  succeeding  to  and  representing 
the  donee.  The  efiect  of  such  a  gift  is  therefore  not  to  give 
one  interest  to  A  and  another  to  his  heir,  but  to  give  the  whole 
interest  to  A,  that  is,  an  estate  in  fee  simple  descendible  to  his 
heirs  general.     In  such  a  gift,  as  it  is  technically  expressed,  the 

^  This  passage  shows  that  it  was  possible  before  the  Statute  of  Quia 
Emptores  for  a  fireehold  tenant  to  grant  away  the  whole  of  his  land  to 
another,  so  as  to  place  the  grantee  exactly  in  his  own  position,  and  to 
substitute  him  as  tenint  to  the  superior  lord.  The  Statute  of  Quia 
Emptores  (see  below,  Chap.  IV,  §  5)  applied  only  to  the  case  of  a  grant  of 
a  portion  of  his  land  by  the  tenant. 

''  See  Chap.  V,  §  6. 

I  2 


ii5  Extracts  from  Bracton.  [chap.  in. 

word  '  heirs '  is  a  word  of  limitation,  not  of  purchase.  It  is 
simply  a  mode  of  describing  the  nature  and  extent  of  the  interest 
which  is  taken  by  A. 

(2)  If  however  other  conditions  or  limitations  are  expressed 
in  the  gift,  the  estate  given  is,  according  to  Bracton,  to  be 
modified  thereby.  Thus  if  an  estate  be  given  to  a  man  and  the 
heirs  of  his  body,  or  to  a  man  and  his  sons  by  a  particular 
wife,  the  fee  will  in  that  case  descend  according  to  the  modifi- 
cations expressed  in  the  gift ;  and  if  no  such  issue  is  born,  the 
condition  will  not  have  been  fulfilled,  and  the  estate  will  revert 
to  the  donor.  It  does  not  appear  from  this  passage  within 
what  limits  this  power  of  the  donor  to  define  interests  to  be 
taken  under  the  grant  was  confined.  Some  of  the  instances 
given  by  Bracton  would  have  been  clearly  inadmissible  in  later 
times.  The  law,  as  will  be  seen  hereafter,  took  a  more  definite 
shape  after  the  Statute  De  Donis  Conditionalibus'. 

(3)  It  appears  from  this  passage  that  what  were  afterwards  known 
as  remainders  and  estates  of  future  enjoyment  were  regarded  by 
Bracton  as  conditional  estates.  For  instance,  a  gift  to  A  and 
the  heirs  of  his  body,  or,  if  they  fail,  then  to  B  and  the  heirs 
of  his  body,  &c.,  would,  according  to  Bracton,  give  to  B  an 
estate  in  expectancy,  to  come  into  effect  or  enjoyment  either  on 
A's  dying  without  issue  born,  or  on  failure  oi  As  issue.  This 
would  in  after  times  have  been  called  a  remainder^.  Bracton 
speaks  of  it  as  a  conditional  gift.  The  prominence  which  Bracton 
gives  to  conditional  estates  is  no  doubt  in  a  great  measure  owing 
to  the  full  discussion  of  the  nature  and  eff'ect  of  conditions  to  be 
found  in  the  sources  of  Roman  law^. 

Bracton,  lib.  iv.  cap.  28.  fol.  207.  Videndum  est  igitur  in 
primis  de  generibus  tenemeutorum.  .  .  .  Et  sciendum  quod 
liberum  tenementum  est  id  quod  quis  tenet  sibi  et  haeredibus  suis 
in  feodo  et  haereditate,  vel  in  feodo  tantum  sibi  et  haeredibus  suis. 
Item  ut  liberum  tenementum,  sicut  ad  vitam  tantum  vel  eodem 
niodo  ad  tempus  indeterminatum,  absque  aliqua  certa  temporis 
praefinitione,  scilicet,  donee  quid  fiat  vel  uon  fiat,  ut  si  dicatur, 

'  See  below,  Chap.  IV,  §  3.  «  See  below,  Chap.  V,  §  3. 

'  See  especially  Dig.  xxxv.  tit.  i.  De  Conditionibus  et  Demonstrationibus. 


SECT.  II.  §  14.]  Estates  for  Life.  117 

do  tali  douec  ei  providero.  Liberum  autem  tenementum  non 
potest  dici  alicujus  quod  quis  tenet  ad  certinn  nnmerum  aiinnruni 
meusium  vol  dierum,  licet  ad  terminum  centum  annorum.  quae 
excedit  vitas  liominum.  Item  liberum  non  potest  dici  tene- 
mentum alicujus,  quod  quis  tenet  ad  voluntatem  dominorum 
precario,  quod  tempestive  et  iutempestive  poterit  revocaii,  sicut 
de  anno  in  annum,  et  de  die  in  diem. 

Lib.  ii.  cap.  5.  fol.  13.  Et  sciendum  quod  multipliciter  tit 
donatio  ;  quandocpie  scilicet  in  feodo,  quandoque  in  vita,  quan- 
doque  ad  feodi  firmam  ^,  quandoque  ad  terminum  vitae  vel 
annorum.  Si  autem  ad  vitam  qualitercunque,  statim  habet 
donatarius  liberum  tenementum,  ut,  si  fuerit  ejectus,  recuperare 
possit  per  assisam  novae  disseisinae,  et  poterit  ille  cui  sic  data 
fuit  terra  ilia,  alteri  dare,  vel  in  feodo,  vel  ad  \'itam  si  voluerit, 
sed  revocari  poterit  donatio  ^.  Sed  si  ille,  qui  tenuerit  ad  vitam, 
sic  et  talibus  verbis  donationem  fecerit  de  tei-ra  quam  ad  vitam 
tenuerit  alicui,  '  Do  et  concede  tali  quicquid  juris  habeo  in  tali 
terra,'  etsi  qui  dat  liberum  habeat  tenementum,  non  tamen  facit  ei 
cui  sic  donatur  liberum  tenementum  ^,  quia  dico,  *  Do  tibi  jus 
meum,'  hoc  est  terram  talem  ad  vitam  meam  scilicet  donatoris, 
non  agitur  ad  vitam  donatorii,  et  ideo  donator  licet  libex'um 
habuerit  tenementum,  donatorio  tamen  per  haec  verba  liberum 
tenementum  facere  non  })otuit,  quia  si  dixisset,  '  Do  tibi  talem 
rem  in  dominico  vel  in  feodo,'  hoc  non  esset  jus  suum,  sed  injuria. 
Jus  autem  suum  hoc  fuit,  dare  illud  quod  habuit,  scilicet  terram 

•  For  a  gift  in  fee  farm,  see  above,  p.  92.  n.  i. 

^  That  is,  if  tenant  for  life  makes  a  gift  of  an  estate  of  greater  duration 
than  he  himself  possesses,  the  freehold  passes,  but  the  estate  granted  may 
be  avoided  after  the  death  of  tenant  for  life  Ij}-  the  person  entitled  in  re- 
mainder or  reversion. 

^  This,  hovrever,  was  not  law  in  later  times.  By  such  a  grant  as  that 
supposed  in  the  text,  the  grantee  would  become  tenant  pur  autre  vie, 
which  is  as  much  a  freehold  interest  as  is  an  ordinary  estate  for  life. 
(See  Blackstone,  book  ii.  p.  120.)  On  the  death  of  tenant  pur  autre  vie 
in  the  lifetime  of  cestui  que  vie  (the  person  during  whose  life  the  estate  is 
to  last),  formerly  the  lands  became  the  property  of  the  first  occupant.  If 
the  grant  had  been  made  to  a  man  and  his  heirs,  the  heir  took  during  the 
residue  of  the  life  of  cestui  que  vie,  and  was  called  the  special  occupant. 
Blackstone,  ii.  p.  259.  The  Statute  of  Frauds,  29  Car.  II,  c.  3,  followed 
by  14  Geo.  II,  c.  20,  makes  such  estates  subject  to  the  will  of  tenant  pur 
autre  vie,  and  provides  that,  if  not  so  disposed  of,  and  there  is  no  special 
occupant,  the  estate  is  to  devolve  upon  the  executors  or  administrators,  and 
be  dealt  with  as  personal  property. 


1 1 8  Extracts  from  Bracton.  [chap.  hi. 

dare  ad  vitam  suam,  scilicet  donatoris  et  non  ad  vitam  acci- 
pientis,  quia  hoc  esset  iDJuriosum  et  non  justum,  et  ex  hoc 
liberum  tenementum  habere  non  potuit. 

Lib.  ii.  cap.  6.  fol.  17.  Donationvim  alia  divisio  scilicet 
quod   alia  simplex  et  pura,  alia  conditionalis,  alia  sub  mode 

uni  facta,  vel  pluribus  successive Simplex 

autem  et  pura  dici  poterit  ubi  nulla  est  adjecta  conditio  nee 
modus ;  simpliciter  enim  dari  dicitur,  quod  nuUo  adjecto  datur. 
Ut  si  d'icatur,  '  Do  tali  tantam  terram  in  villa  tali  pro  homagio 
et  servitio  suo,  habendam  et  tenendam  eidem  tali  et  haeredibus 
suis  de  me  et  haeredibus  meis,  reddendo  inde  annuatim  ipse  et 
haeredes  sui  mihi  et  haeredibus  meis  tantum  ad  tales  terminos 
pro  omni  servitio  et  consuetudiue  seculari  et  demanda,'  ita  quod 
certa  sit  res  quae  datur,  et  certa  servitia  et  consuetudines 
quae  domino  debentur,  licet  incerta  sunt  alia  quae  tacite  remit- 
tuntur,  'et  ego  et  haeredes  mei  warrantizabimus,  acquiet- 
abimus,  et  defendemus  in  perpetuum  talem  et  haeredes  suos  versus 
omnes  gentes  per  praedictum  servitiura,'  et  sic  acquirit  dona- 
tarius  rem  donatam  ex  causa  donationis,  et  haeredes  ejus  post 
eum  ex  causa  successionis  \  et  nihil  acquirit  ex  donatioue  facta 
antecessori,  quia  cum  donatorio  non  est  feoffatus.  .... 
Item  augere  poterit  donationem  et  facere  alios  quasi  haeredes, 
licet  revera  haeredes  non  sunt,  ut  si  dicat  in  donatioue,  '  haben- 
dum et  tenendum  tali  et  haeredibus  suis,  vel  cui  terram  illam 
dare  vel  assignare  voluerit  ^.'     .     .     .     . 

Item  sicut  ampliari  possunt  haeredes  sicut  praedictum  est,  ita 
coarctari  poteruut  per  modum  donationis,  quod  omnes  haeredes 
oeneraliter  ad  successionem  non  vocantur.  Modus  enim  legem 
dat  donation!,  et  modus  tenendus  est  contra  jus  commune,  et 
contra  legem,  quia  modus   et  conventio  vincunt  legem,  ut   si 

1  In  the  technical  language  of  later  times  the  word  '  heirs '  in  such  a 
gift  is  a  word  of  limitation,  not  of  purchase ;  i.  e.  it  is  merely  descriptive 
of  the  estate  which  the  grantee  takes.  A  gift  to  A  and  his  heirs  is 
equivalent  to  a  gift  to  A  in  fee.  If  the  words  '  of  inheritance '  be  omitted, 
the  estate  granted  is  only  for  life. 

2  This  mention  of  assigns  did  not  confer  a  right  of  alienation,  which,  as  has 
been  seen,  existed  already.  In  fact  the  phrase  seems  to  have  found  its  way 
into  charters  of  feoffment  from  the  habitual  use  of  some  similar  expression 
in  the  old  Anglo-Saxon  charters  ;  see  above,  p.  49.  The  practical  effect 
seems  to  have  been  to  extend  the  warranty  of  the  donor  for  the  protection 
of  the  assigns  as  well  as  the  heirs  of  the  donee.  See  Eeeves,  i.  p.  320. 
Mr.  Joshua  Williams,  Elements  of  Real  Property,  loth  ed.  p.  40,  appears  to 
attach  too  great  an  importance  to  the  use  of  the  clause. 


SECT.  II.  §  14.]  Conditional  Gifts.  119 

dicatur,  '  Do  tali  tantam  terrain  cum  pertinentiis  in  N.  habendam 
et  tenendam  sibi  et  haercdibus  suis  quos  de  carue  sua  et  uxore 
sibi  desponsata,  procreates  habuerit.'  .  .  .  Quo  casu,  cum  certi 
haeredes  exprimantur  in  donatione,  videri  poterit,  quod  tantura 
sit  descensus  ad  ipsos  baeredes  communes  per  modum  in  dona- 
tione appositum,  omnibus  aliis  haeredibus  suis  a  successioiie 
penitus  excbisis,  quia  boc  voluit  donator.  Et  unde  si  hujus- 
modi  haeredes  procreati  fuerint,  ipsi  tantum  vocantur  ad  succes- 
sionem,  et  si  taliter  feoffatus  aliquem  ulterius  inde  feoffaverit, 
tenet  feoffamentum,  et  haeredes  tenentur  ad  warrantiam  ^,  cum 
ipsi  nihil  clamare  possunt  nisi  ex  successione  et  descensu 
parentum,  quamvis  quiljusdam  videatur  quod  ipsi  feoffati 
fuerint  cum  parentibus,  (piod  non  est  verum  ^.  Si  autem 
nuUos  tales  haeredes  habuerit,  revertetur  terra  ilia  ad  dona- 
torem  per  conditionem  tacitam,  etiam  si  nulla  fiat  mentio  in 
donatione  quod  revertatur,  vel  si  expressa  mentio  in  donatione 
habeatur  :  et  ita  erit  si  haeredes  aliquando  extiterint  et  defece- 
rint.  Sed  in  primo  casu  ubi  uullus  extiterit,  semper  erit  res 
data  donatorio  liberum  tenementum  et  non  feodum.  Item  in 
secundo  casu,  quousque  inceperint  haeredes  esse,  est  liberum 
tenementum  ^,  cum  autem  inceperint  habei'e,  incipit  liberum 
tenementum  esse  feodum  *,  et  cum  desierint  esse,  desinit  esse 
feodum,  et  iterum  incipit  esse  liberum  tenementum,  et  ita  nun- 
quam  ibi  erit  dotis  exactio   nisi  fuerit  donatio  pura,   quia  de 

reversione  expressa  nunquam  fiat  mentio^ 

Item  esto  quod  sic  dicatur  in  donatione,  'Do  tali  tantam  terram 
cum  pertinentiis  etc.  habendum  et  tenendum  sibi  et  haeredibus 
suis  si  haeredes  habuerit  de  corpore  suo  procreatos ; '  si  tales 
haeredes  extiterint,  quamvis  defecerint,  generaliter  vocandi  sunt 
oranes  et  in   infinitum,   quia  satisfactum   est   condition! ''.     Si 

'  See  below,  Chap.  V,  §  2. 

*  For  the  same  principle  applies  as  above,  that  the  words  are  only 
descriptive  of  the  estate  taken  by  the  grantee.  The  instance  just  given  is 
that  of  an  estate  which  would  in  later  times  have  been  called  an  estate  tail. 

^  That  is,  '  an  estate  for  life.' 

*  This  is  an  instance  of  what  Blackstone  calls  an  estate  upon  condition 
precedent;  ii.  ch.  ro.  p.  154. 

^  As  to  a  reversion,  and  the  mode  in  which  it  arises,  see  below,  Chap.  V, 

§  .V 

"  And  hence  a  gift  'viro  et  haeredibus  suis  de  corpora  procreatis,'  was 

held  to  imply  a  condition,  and  to  be  the  gift  of  the  fee  conditional  on  tha 

donee  having  issue  of  his  body.     Such  a  gift,  however,  differed  from  that 

in  the  text  in  not  being  descendible  to  heirs  general. 


I20  Extracts  from  Bracton.  [chap.  hi. 

autem  nulkis  talis  procreatus  fuerit,  semper  erit  res  data  liberuin 
tenemeutum,  et  revertetur  ad  donatorem,  omnibus  aliis  naere- 
dibus  exclusis,  cum  non  sit  conditioiii  satisfactum,  et  sic  ad- 
jungitur  conditio  sub  modo.  Item  fieri  poterit  donatio  viro  et 
uxori  simul,  et  haeredibus  uxoris  tantum  per  modum  donationis, 
et  eodem  modo  viro  et  uxori  et  haeredibus  viri  tantum.  Item 
viro  et  uxori  et  haeredibus  communibus  si  tales  extiterint,  vel 
si  non  extiterint  tunc  ejus  haeredibus  qui  alium  supervixerit. 

Item  poterit  jiluribus  fieri  donatio  per  modum  simul  et  suc- 
cessive ;  ut  si  quis  plures  habeat  filios,  et  sic  fecerit  primogenito 
donationem  et  dicat, '  Do  A  primogenito  filio  meo  tantam  terram 
etc.  habendam  et  tenendam  sibi  ct  haeredibus  suis  de  corpore 
suo  procreatis,  et  si  tales  haeredes  non  habuerit,  vel  habuerit 
et  defecerint,  tunc  terram  illam  do  B  filio  meo  postgenito  \  et 
volo  quod  terra  ad  ipsum  B  revertatur  habendum  et  tenendum 
sibi  et  haeredibus  suis  quos  de  corpore  suo  procreatos  habuerit, 
et  si  nullos  tales  habuerit,  vel  si  habuerit  et  defecerint,  tunc 
volo  et  concedo  pro  me  et  haeredibus  meis  quod  predicta  terra 
revertatur  ad  C  tertium  filium  meum,  habendum  et  tenendum 
sibi  et  haeredibus  suis  quos  de  corpore  suo  jjrocreatos  habuerit, 
et  sic  de  plui-ibus.  Et  si  praedicti  ABC  sine  talibus  haere- 
dibus de  corpore  suo  procreatis  decesserint,  tunc  volo  quod 
praedicta  terra  revertatur  ad  me  et  ad  alios  haeredes  meos,' 
quod  quiilem  fieret  sine  expressione  per  tacitam  conditionem, 
nisi  donator  aliud  inde  ordinaret.  Item  si  largius  fiat  donatio, 
ut  si  dicatur,  '  Do  tibi  tantum  terrae  etc.  habendum  et  tenendum 
tibi  et  haeredibus  tuis  vel  cui  dare  vel  assignare  in  vita  vel 
in  morte  legare  volueris,'  valet  donatio  propter  voluntatem  et 
consensum  donatoris  quamvis  contra  legem  terrae  fieri  videatur, 
et  unde  si  legatarius  primam  habuerit  seisinam,  si  haeres  petat 
per  assisam,  legatarius  contra  assisam  competentem  habebit 
exceptionem  de  modo  donationis  ^  :  si  autem  legatarius  extra 
seisinam  petat  ex  causa  testamentaria  in  foro  ecclesiastico,  ol)- 


*  This  would  in  later  times  have  been  called  a  vested  remainder  in  tail. 
See  Chap.  V,  §  3. 

^  This  extension  of  the  doctrine  of  the  effect  to  be  given  to  the  dispo- 
sition of  the  donor,  so  as  to  enable  the  donee  to  designate  the  person  who 
was  to  take  the  land  by  his  will,  was  not  recognised  by  law,  and  Bracton's 
dictum  was  probably  never  acted  on.  The  dictum  is  probably  founded  on 
the  power  which  was  usually  inserted  in  Anglo-Saxon  charters.  See 
above,  p-  49.  * 


SECT.  II.  §  14.]  Conditional  Gifts.  T2i 

stabit  ei  regia  proliibitio,  ne  judices  ecclesiastic!  judicarent,  (juia 
non  habent  jiirisdictionem  nee  coerciouem  ad  judicium  suuiu 
exequendum.  Si  autem  in  foro  seculari  agere  voluerit  ;  quanivis 
hoc  sit  inauditum,  bene  poterit  per  breve  formatum,  cum  possit 
quis  i-enunciare  iis  quae  pro  se  et  suis  fueriut  introducta,  sine 
praejudicio  aliorum  \ 

Item  conditionum  alia  expressa  et  fit  verbis  negativis,  ut  si 
dicatur,  '  Si  Titius  haeres  non  sit,  tu  haeres  esto  V  vel  '  Si  tu 
baeredem  de  corpore  tuo  non  habueris,  tunc  terra  sic  data  rever- 
tatur  ad  tales,'  unum  vel  plures,  simul  vel  successive. 

Item  poterit  conditio  impedire  descensum  ad  proprios  baeredes 
contra  jus  commune,  ut  si  dicam,  '  concedo  tibi  tantum  terrae  ad 
terminum  x  annorum,  et  post  terniinum  revertatur  ad  me 
terra  ilia,  et  si  infra  terminum  illorum  x  annorum  decessero, 
concedo  pro  me  et  baeredibus  meis  quod  terra  ilia  tibi  remaneat 
ad  vitam  tuam  vel  in  feodo,'  et  sic  facit  conditio  liberum  tene- 
mentum  et  feodum,  et  tollit  conditio  baeredibus  assisam  mortis 
antecessoris,  quia  si  illi  prima  facie  babeant  directam  actionem, 
firmarius  tamen  habebit  ex  conventione  exceptionem  ^.  Item 
quod  fuit  ab  initio  liberum  tenementum  et  ad  vitam,  per  con- 
ventiouem  poterit  mutari  in  terminum,  ut  si  aliquis  concedat 
alteri  terram  ad  vitam,  fieri  poterit  inter  eos  conditio,  quod  si 
tenens  infra  certum  terminum  obierit,  quod  baeredes  tenentis 
vel  assignati  vel  sui  executores  possunt  ten-am  sic  datam  teuere 
usque  ad  certum  terminum,  post  mortem  ipsius  tenentis,  et  ita 
facit  conditio  de  termino  liberum  tenementum,  et  e  contrario, 
et  dat  exceptionem  contra  veros   dominos   et  eorum   baeredes. 

^  This  suggestion  of  Bracton's  was  not  adopted  by  the  Courts  of  Common 
Law.  A  devise  of  lands  was  not  recognised  as  conveying  any  legal  interest 
to  the  devisee  till  after  the  legislation  of  Henry  VIII.  See  Chap.  VIII.  As 
to  the  jurisdiction  of  the  Ecclesiastical  Courts  in  regard  to  legacies,  see 
Blackstone,  ii.  513,  iii.  65. 

-  This  instance  is  taken  almost  verbatim  from  the  Digest  De  Vulgar! 
et  Pupillari  Substitutione,  xxviii.  tit.  vi.  1,  and  is  not  applicable  to  the 
law  at  the  time  of  Bracton,  the  maxim  being,  '  Solus  Deus  haeredem  facere 
potest  non  homo.' 

^  '  The  tenant  for  years  will  be  able  to  plead  the  grant  in  bar  to  an 
assize  of  novel  disseisin.'  Notice  the  acciirate  use  of  the  term  'exceptio' 
in  the  sense  employed  by  the  Roman  lawyers.  '  Conventio  '  is  here  used, 
somewhat  inaccurately,  to  express  a  conditional  gi-ant. 


122  'Extracts  from  Bracton.  [chap.  in. 

Item  dat  exceptionem  creditori  contra  debitorem 

verum  dominum  et  haeredes  ejus,  si  inter  eos  convenerit  ab 
initio,  quod  si  pecunia  suo  die  solutum  non  fuerit,  quod  terra  in 
vadium  data  remaneat  creditori  et  suis  baeredibus,  ut  infra  de 
assisa  mortis  anteeess^is  de  haerede  Johannis  Dacy  \ 

§  15.   Tenancy  by  the  Curtesy  of  England. 

The  life  interest  which  a  husband  has  in  certain  events  in 
the  lands  of  which  his  wife  has  in  her  lifetime  been  actually 
seised  ^  for  an  estate  of  inheritance  is  called  an  estate  by  the 
curtesy  of  England.  In  order  to  give  the  husband  title  as 
tenant  by  the  curtesy  the  wife  must  have  had  by  him  issue 
born  alive  capable  of  inheriting  the  lands  ^.  The  origin  of  the 
nam,e  is  doubtful.  It  appears  to  be  connected  with  curia  *,  and 
to  have  reference  either  to  the  attendance  of  the  husband,  as 
tenant  of  the  lands  at  the  lord's  court,  or  to  mean  simply  that 
under  the  circumstances  mentioned  the  husband  is  acknowledaed 
tenant  by  the  Courts  of  England^,  the  equivalent  Latin  ex- 
pression being  tenens  per  l^gein  Angliae.  The  doubt  referred 
to  in  the  text  as  being  entertained  by  Stepbanus  de  Segrave 
is  a  curious  instance  of  the  discussion  and  criticism  to  which 
rules  of  law  were  subjected  at  this  time  ". 

Bracton,  lib.  v.  cap.  30.  fol.  437.  Si  quis  cum  haereditatem 
habuerit  vel  non  habuerit  uxorem  duxerit  habentem  haeredi- 
tatem vel  maritagium"  vel  aliquam  terram  ex  causa  donationis, 
si  liberos  inter  se  habuerint  ex  justis  nyptiis  procreatos,  si  uxor 
praemoriatur,  remanebit  viro  haereditas  et  terra  sua  tota  vita 

*  See  below,  Chap.  V,  §  5  (2).  The  reference  is  to  the  report  of  some  case. 
^  As  to  what  amounts  to  an  actual  seisin,  see  Coke  upon  Littleton,  29  a. 
^  See  Littleton,  sect.  35.     In  gavelkind  lands  a  man  may  be  tenant  by 

the  curtesy  without  having  had  any  issue. 

*  In  ancient  Scotch  law  the  expression  is  '  curialitas.' 

5  As  Gunderman  (Englisches  Privatrecht,  p.  167)  points  out,  this  species 
of  interest  was  not,  as  Littleton  (sect.  35)  asserts,  peculiar  to  England,  but 
is  found  also  in  France  and  Germany. 

*  For  further  details  as  to  the  incidents  of  tenancy  by  the  curtesy,  see 
Pdackstone,  Book  ii.  p.  126. 

^  See  above,  p.  75. 


SECT.  II.  §  16.1  Terms  of  Years.  123 

ipsius  viri,  sive  superstites  fuerint  liberi  sive  mortui,  omnes,  vel 
quidani :  dum  tamen  seinel  aut  vocem  aut  clamorem  diiniseriiit 
(juod  audiatiir  infra  quatuor  parietes  si  hoc  probetur^  Et 
quod  dicitui-  de  priino  viro  dici  potent  de  secuudo,  si  post- 
modum  nupserit  secundo  vii-o,  sive  de  pi-imo  viro  haeredes  babii- 
erit  apparentes  sive  non,  plenae  aetatis  vel  minoris  aetatis,  quod 
quidem  iiijuriosuin  est  secundum  Stephanum  de  Segrave,  maxime 
cum  de  primo  viro  haeredes  habuerit,  quod  quidem  svTstinere 
posset  si  nullos  habuerit,  dicebat  enim  quod  lex  ilia  male 
intellecta  fuit  et  male  usitata,  quia  quod  dicitur  de  lege  Angliae 
intelligi  debet  de  primo  viro  et  eorum  haeredibus  communibus, 
et  non  de  secundo,  maxime  cum  haeredes  apparentes  extiterint 
de  primo  ^. 

§  16.   Terms  of  Years. 

In  the  following  passage  Bracton  speaks  of  estates  less  than 
freehold.  The  characteristic  of  this  class  of  interests  in  land 
is  that  the  estate  is  sure  to  come  to  an  end  on  the  lapse  of 
some  specified  time,  however  remote  that  time  may  be.  The 
passage  is  very  remarkable,  as  noting  the  precise  jioint  at  which 
terms  ^   of  yeai-s   came   to   be  recognised  as    estates   in   land  ^. 

1  This  is  characteristically  put  by  Bracton  as  if  it  were  aa  essential 
condition.  In  later  times  crying  was  properly  regarded  as  evidence,  but 
not  as  necessarily  the  only  evidence,  of  the  child  being  born  alive.  It 
was  usual  in  early  times  to  evade  the  extreme  difficulty  which  was  ex- 
perienced in  adopting  modes  of  deciding  disputed  facts  by  fixing  on  some 
one  fact  as  a  conclusive  index  to  the  trutli  or  falsehood  of  the  mattei-s  in 
dispute,  admitting  of  no  contradiction,  and  sometimes  to  regard  it  as  the 
sole  evidence  of  the  thing  to  be  proved. 

^  The  law  was  settled  in  accordance  with  the  opinion  of  Stephanus  de 
Segrave  by  the  Statute  of  Westminster  II,  13  Edward  I,  cap.  i.  It  was 
held  that  the  Statute  had  made  a  change  in  the  common  law,  (Year  Book, 
30  Edward  I,  p.  126). 

2  It  should  be  observed  that  by  the  word  '  term '  is  meant  not  only  the 
period  during  which  the  interest  lasts,  but  the  interest  or  estate  itself. 

*  The  distinguishing  characteristic  of  an  estate  in  lands  is  that  it  con- 
sists of  a  collection  of  rights  in  rem,  or  rights  available  against  all  the 
world,  as  distinct  from  the  other  great  class  of  rights,  j'«crt  in  personam, 
which  are  only  available  against  some  particular  or  determinate  person 
or  persons ;  e.g.  rights  arising  from  contract.  See  Austin,  i.  pp.  380-389, 
and  below,  Appendix  to  Part  I,  §  i.  A  more  apt  illustration  of  the  distinction 
between  rights  in  lyersonam  and  rights  in  rem  than  that  contained  iu 
the  following  passage  cannot  be  found. 


124  Extracts  from  Bradon.  [chap.  in. 

Before  the   change  here  mentioned  the  termor  or  lessee  had 
no  interest  which  the  law  would  protect  against  third  persons, 
nor  indeed  against  the  lessor,  unless  the  interest  in  the  lands 
was   protected  by  a  conventio,  or  covenant  by  deed.     It  had 
been   the  practice    from  very  early  times  to  grant  leases  by 
deed  \  and  in  such  a  case,  if  the  lessor  wrongfully  ejected  the 
lessee,  the   lessee   had   his  remedy  by  action   on  the  covenant 
{per    breve    de    conventione),   as    in    the    case    of    any   other 
covenant    under   seal.     The  new  writ  which   was    introduced, 
as  stated  in  this  passage,  afforded  the  lessee  a  remedy  against 
his  lord,  whether   the   lease  was    by  deed    or    not ;   and    also 
gave    him    a    right    to    protection    against    ejectment    by    a 
third  person,  and  probably  an  additional  remedy,  by  enabling 
the  lessee  to  recover  possession   of  the   land,  and   not  merely 
damages  for  breach   of  covenant^.     This  was  called   the  writ 
of  ejectio  firmae ;  a  proceeding  which,  by  a  series  of  fictions  (now 
abolished),  was  extended,  till,  in  the  form  of  the  action  of  eject- 
ment, it  became  the  appropriate  means  of  asserting  the  right 
to  the  possession  of  land  under  whatever  title,  and  is  now  the 
statutory  substitute  for  all  the  forms  of  real  actions. 

Thus  the  interest  of  the  termor  or  lessee  for  years,  instead  of 
resting  at  best  upon  a  covenant  with  his  lessor,  and  therefore 
being  enforceable  only  as  against  him,  now  became  a  right  of 
property  which  could  be  enforced  against  any  wrong-doer,  by  a 
remedy  analogous  to  that  provided  for  a  wrongful  ouster  of  a 
freeholder  from  his  possession.     Thus   these  interests    became 

*  See  Madox,  Forrnulare  Anglicanum,  Preliminary  Dissertation,  xx  ; 
Forms,  Nos.  cxxxv,  ecxx,  ccxxi,  ccxxii ;  and  see  above,  p.  40. 

-  In  the  following  passage  of  Bracton  the  recovery  of  the  possession  of 
the  land  is  mentioned  as  if  it  were  part  of  the  extended  remedy  provided 
by  the  council.  If  so,  the  importance  of  the  passage  in  the  history  of 
the  recognition  of  leasehold  interests  is  much  increased.  In  later  times 
it  was  doubted  whether  the  judgment  was  not  for  damages  merely,  and 
not  for  the  recovery  of  the  term.  It  was,  however,  finally  settled  that 
in  '  ejectio  firmae '  the  term  itself  could  be  recovered.  See  Fitzherbert, 
Natura  Brevium,  145  m  ;  I.  Selwyn's  Nisi  Prius,  Ejectment,  p.  615  ;  Doe 
d.  Poole  V.  Errington,  i  Adolphus  and  Ellis,  756. 


SECT  II.  §  1 6.]  Terms  of  Years.  125 

estates  or  rights  of  property  in  land.  There  was  however  an 
important  difference  in  the  devolution  of  the  estate  on  the  death 
of  the  lessee.  Under  the  earlier  law,  the  persons,  who,  upon  the 
death  of  the  lessee  within  the  term,  would  have  been  entitled 
to  the  benefit  of  the  covenant,  were  the  executors  or  adminis- 
trators of  the  deceased,  and  therefore  it  was  natui'al  that  this 
new  estate  or  interest  should  descend,  not  to  the  heir-at-law, 
but  to  the  personal  representatives,  the  executors  or  adminis- 
trators, of  the  lessee.  Thus  leasehold  interests  came  to  be 
classed  with  personal  and  not  with   real  property  \ 

Bracton,  lib.  ii.  cap.  9.  fol.  27.  Si  autem  fiat  donatio  ad 
terminum  annorum  quamvis  longissimum,  qui  excedat  vitas 
hominum,  tamen  ex  hoc  non  habebit  donatorius  liberum  tene- 
mentum,  cum  terminus  annorum  certus  sit  et  determinatus,  et 
terminus  vitae  incertus,  et  quia,  licet  nihil  certius  sit  morte, 
nihil  tamen  incertius  est  hora  mortis.  Poterit  etiam  quis  terram 
alicui  concedere  ad  terminum  annorum,  et  ille  eandem  infra 
terminum  ilium  alteri  dare,  vel  eidem  in  feodo,  et  sic  mutare 
unam  possessionem  in  aliam,  si  firmarium  feoffaverit  ^.  Si 
autem  alium,  utraque  possessio  durabit,  quia  sese  compatiuntur 
terminus  et  feoffamentum  de  eadem  terra,  quia  ibi  sunt  diversa 
jm'a,  ad  feoffatum  vero  pertinet  proprietas  feodi  et  liberum 
tenementum,  firmarius  vero  nihil  sibi  vindicare  poterit  nisi 
usum  fructuum,  scilicet  quod  libere  uti  possit  et  sine  impedi- 
mento  feoffati  percipere  usum  fructuum.  Item  dare  poterit 
(|uis  alicui  terram  ad  voluntatem  suam,  et  quamdiu  ei  placuerit 
de  termino  in  terminum,  et  de  anno  in  annum,  et  in  quo  casu 
ille  qui  accepit  nullum  habet  liberum  tenementum,  cum  domi- 
nus  proprietatis  rem  sic  concessam  repetere  possit  sicut  a 
precario. 

Lib.  iv.  cap.  36.  fol.   220.     Nimc  dicendum  si  quis  ejiciatur 
de  usufructu  vel   usu  et    habitatione^  alicujus  tenement!  quod 


>  See  as  to  the  further  history  of  terms  of  years,  below,  Chap.  V,  §  i . 

'  This  would  be  technically  called  releasing  the  reversion.  As  to  the 
conveyance  by  lease  and  release,  see  below,  Chap.  V,  §  3  (1),  and  Chap. 
VII. 

'  These  terms  are  borrowed  from  the  Roman  lawyers.  See  Justinian's 
Institutes,  ii.  Titt.  iv,  v.      The  Roman  conception  of  the  interest  is  very 


1 26  Extracts  from  Bracton.  [chap.  hi. 

tenuerit  ad  terminum  annorum  ante  terminum  suum.  Poterit 
enim  quis  in  uno  et  eodem  tenemento  habere  liberum  tenemen- 
tum  et  alius  usumfructum  et  usum  et  babitationem.  Solent  ali- 
quando  tales,  cum  ejecti  essent  infra  terminum  suum,  perquirere 
sibi  per  breve  de  conventione.  Sed  quia  tale  breve  locum  habere 
non  potuit  inter  aliquas  personas,  nisi  tantum  inter  ilium  qui  ad 
firmam  tradidit  et  ad  terminum,  et  ilium  qui  ceperit,  nee  alios 
obligare  potest  obligatio  conventionis,  et  etiam  quia  inter  tales 
personas  vix  vel  non  sine  difficultate  potuit  terminari  negotium, 
de  consilio  curiae  provisum  est  firmario  contra  quoscuuque  de- 
jectores  per  tale  breve  :  '  Rex  vicecomiti  salutem,  Praecipe  A 
quod  juste  et  sine  dilatione  reddat  B  tantum  terrae  cum  perti- 
nentiis  in  tali  villa  quam  idem  A  qui  dimisit  etc'  Vel  sic,  '  Si 
talis  fecerit  te  securum  etc.  ostensurus  quare  deforceat  tali  tantum 
terrae  cum  pertineutiis,  in  tali  villa,  quod  talis  dimisit  ipsi  tali  ad 
terminum  qui  nondum  praeteriit,  infra  quern  terminum  praedictus 
talis  illud  vendidit  tali,  occasione  cujus  venditiunis  ipse  talis 
postmodum  talem  de  praedicta  terra  ejecit  ut  dicit.  Et  habeas 
ibi  etc.  Teste  etc'  Et  si  tale  breve  competat  contra  extraneum 
propter  venditionem,  multo  fortius  competat  contra  ipsum  domi- 
num  qui  dimisit  et  sine  causa  ejecit,  quam  contra  extraneum  qui 
causam  habuit  qualem  qualem,  si  occasione  venditionis  ei  ftvctae 
venditor  firmarium  ejecit  vel  aliter  :  si  alius  ejecerit  quam  ille  qui 
dimisit,  et  tunc  sic, '  Quam  C  de  N  ei  dimisit  ad  terminum  qui 
nondum  praeteriit,  infra  quem  terminum  praedictus  A  vel  praedic- 
tus 0  ipsum  B  de  eadem  terra  vel  firma  sua  injuste  ejecit  ut  dicit 
etc'  .  .  .  Non  magis  poterit  aliquis  firmarium  ejicere  de  firma 
sua  quam  tenentem  aliquem  de  libero  tenemento  suo.  Et  unde  si 
ille  ejecerit  qui  tradidit,  seisinam  ^  restituet  cum  damnis,  quia  talis 
restitutio  non  raultum  differt  a  disseisina.  Si  autem  alius  quam 
qui  tradidit  ejecerit,  si  hoc  fecerit  cum  auctoritate  et  voluntate 
tradentis,  uterque  tenetur  hoc  judicio,  unus  propter  factum  et 
alius  propter  auctoritatem.  Si  autem  sine  voluntate,  tunc  tenetur 
ejector  utrique  tam  domino  proprietatis  quam  firmario,  firmario 
per  istud  breve,  domino  proprietatis  per  assisam  novae  dis- 
seisinae,  ut  unus  rehabeat  terminum  cum  damnis,  et  alius  liberum 
tenementum  suum  sine  damnis.  Si  autem  dominus  proprietatis 
tenementum    ad    firmam   traditum   alicui    dederit    in  dominico 


analogous  to  that  of  English  law  ;  it  implied  the  right  of  temporarily  using 
a  thing  of  which  some  other  person  was  the  dominus  in  such  a  way  as  not 
to  interfere  with  his  ultimate  or  reversionary  right. 

*  '  Seisin '  is  here  used  improperly,  as  simply  equivalent  to  possession. 


SECT.  II.  §  17  (i).]     Easements  and  Profits.  127 

tenendum,  seisinam  ei  facere  poterit  salvo  fii-mario  termino  suo. 
Poterit  euim  eum  inducere  in  seisinam  vacuam,  quantum  ad 
ipsum  et  suos,  et  attornare  ^  ei  firmariuin  et  servitium  suuni. 
dum  tamen  feofFatus  non  ntatur,  nee  expletia  capiat,  maxime 
nee  firmarium  impediat  uti,  nee  ipsum  ejiciat. 

§  17.  Servitudes.     {Easements  and  Profits.) 
(i)  In  General. 

The  branch  of  our  law  which  relates  to  the  class  of  rights 
over  land  belonging  to  another  (jui-a  in  alieno  solo),  called  ser- 
vitudes, is  derived  mainly  from  the  Eoman  system.  The  prin- 
ciples here  laid  down  by  Bracton  are  in  most  cases  taken  direct 
from  Roman  sources,  and,  speaking  generally,  are  still  recognised 
as  the  basis  of  the  law  on  this  subject. 

The  main  characteristic  of  the  rights  in  question  is  that  they 
are  either  rights  of  using  the  land  of  another  for  certain 
defined  and  limited  purposes,  as,  for  instance,  of  riding  or  driving 
cattle  across  it ;  or  rights  of  restraining  the  owner  from  using 
his  land  in  certain  definite  ways,  for  example,  the  owner  of  a 
house  with  ancient  windows  has  a  right  to  prevent  any  owner 
of  adjoining  land  doing  anything  upon  his  soil  which  may  ob- 
struct the  access  of  light  and  air  to  the  ancient  window.  The 
former  class  are  called  positive,  the  latter  negative  servitudes. 
It  is  convenient,  though  not  perhaps  strictly  accurate,  to  speak 
of  both  classes  as  rights  of  user  exercised  over  the  land  of 
another. 

If  the   purposes  for  which    the    land    of  another   are    used 
merely  tend  to  the  more  convenient  enjoyment  of  another  piece 
of  land,  the  right  is  called  an  easement ;  if  the  right  is  to  take 
a  portion  of  the  soil  or  the  produce  of  the  soil  of  another,  the. 
right  is  called  a  profit  a  prendre. 

Bracton  points  out  clearly  the  distinction  between  rights  over 
the  land  of  another  which  are  appurtenant,  or  rights  which  are 
exercised  over  tenement  B  (called  the  'praedium  serviens)  by  the 

1  On  the  necessity  of  attornment  on  the  part  of  the  termor  to  complete 
the  alienation  of  the  freehold,  see  below,  Chap.  V,  §.  3  (i). 


128  Extracts  from  Bradon.  [chat:'.  iii. 

successive  owners  of  tenement  A  {praedium  dominans)  as  and 
being  such  owners, — and  rights  in  gross,  or  rights  which  are  not 
attached  to  the  ownership  of  any  piece  of  land  other  than  that  over 
which  the  rights  are  exercised  ^  Again,  he  points  out  correctly 
that  the  essence  of  the  right  consists  in  the  power  of  restraining 
the  owner  of  the  servient  tenement  (that  over  which  the  rights  are 
exercised)  from  putting  into  force  his  full  rights  of  doing  as  he 
pleases  with  the  land.  He  may  not  so  use  his  land  as  to  obstruct 
my  right  of  passage  over  it,  or  of  having  water  from  his  stream. 
His  rights  are  however  only  limited  by  positive  duties ;  that  is, 
by  certain  duties  imposed  by  known  rules  of  law.  User  of  land 
which  causes  damage  to  a  neighbour  does  not  necessarily  amount 
to  legal  injury.  The  principles  and  the  illustrations  here  given 
by  Bracton  are  in  the  main  applicable  to  the  law  at  the  present 
day. 

With  regard  to  the  origin  of  servitudes,  or  the  modes  in  which 
they  may  be  acquired,  Bracton  correctly  lays  down  the  two 
modes  which  have  always  been  recognised,  grant  (dominorum 
constitutio)  and  prescription  (usus).  Feoffment  with  livery  was 
confined  to  granting  freehold  estates  over  land.  It  was  not  ap- 
plicable to  the  class  of  rights  over  land  under  consideration.  Hence 
the  other  principal  mode  of  creating  rights  was  adopted,  namely 
writing  under  seal,  and  it  became  a  principle  that  for  the  creation 
of  a  servitude  (easement  or  profit)  a  grant  by  deed  was  necessary. 

Another  mode  of  acquiring  easements  is,  according  to  Bracton, 


'  It  appears  to  be  the  more  correct  view  to  confine  the  expression  'ease- 
ment •  to  rights  appurtenant  to  land.  Whether  there  can  be  an  easement 
properly  so  called  not  so  appurtenant  is  a  question  which  has  been  much 
discussed,  but  apparently  never  finally  settled.  (See  Gale  on  Easements, 
4th  ed.,  p.  13.  note  d.)  Such  rights  at  all  events  partake  of  the  nature 
of  easements  as  far  as  regards  their  mode  of  creation,  which  must  be  by 
deed  (Bird  v.  Higginson,  6  Adolphus  and  Ellis,  824  ;  Wood  v.  Leadbitter, 
13  Meeson  and  Welsby,  838).  Probably  however  they  do  not  possess  the 
principal  characteristic  of  an  easement  properly  so  called — the  capacity  of 
being  asserted  as  against  third  parties.  They  are  rights  in  personam,  not 
rights  in  rem.  (See  Hill  v.  Tupper,  2  Hurlstone  and  Coltman,  121.)  There 
is  no  question  however  that  the  law  recognises 2?»'0^<s  'in  gross,' i.e.  not  ap- 
purtenant to  lands,  as  rights  in  rem. 


SECT.  II.  §  17  (i).]     Easements  and  Profits.  129 

per  longuvi  usum  continuum  et  padjicum.  The  user  must,  accord- 
ino"  to  him,  have  been  as  of  right,  not  clandestine  or  secret,  or 
permissive.  These  principles,  borrowed  from  the  Homans,  took 
root  in  our  law.  Only  as  time  went  on  the  notion  of  prescription  ^ 
underwent  a  change.  Long  enjoyment  of  a  right  was  not  con- 
sidered, as  was  the  case  in  the  Roman  system,  and  as  Bracton's 
language  here  implies,  as  itself  a  positive  mode  of  acquisition, 
but  only  as  evidence  that  at  some  period  the  owner  of  the  soil 
had  created  the  right  in  question  by  a  lost  or  forgotten  deed  ^. 

'  It  is  important  to  bear  in  mind  the  distinction  between  local  or  particular 
custom  and  prescription.  A  local  custom  is  where  within  the  limits  and 
subject  to  the  restrictions  recognised  by  the  law  (see  Blackstone,  i.  p.  76)  a 
jiractice  has  prevailed  time  out  of  mind  in  a  particular  district,  creating 
certain  special  rights  and  duties  peculiar  to  the  dwellers  in  that  district. 
Prescription  is  where  a  person  possesses  a  right  by  reason  of  the  fact  of 
long  and  uninterrupted  enjoyment,  as  of  right,  either  by  himself  and  his 
ancestors,  or  by  himself  and  his  predecessors  in  title  (i.e.  those  wdio  have 
preceded  him  in  the  ownership  of  the  land  in  respect  of  which  the  right  is 
claimed,  and  whose  rights  have  by  alienation  or  devolution  become  vested 
in  him).     See  Blackstone,  ii.  p.  263. 

^  Blackstone,  ii.  265.  This  doctrine,  arising  from  what  at  the  present 
day  w^e  may  venture  to  pronounce  false  historical  notions,  has  produced  a 
cui-ious  rule  with  regard  to  '  profits.'  According  to  the  legal  theory, 
every  profit,  such  for  instance  as  a  right  of  pasture  on  the  lord's  waste, 
must  have  originated  in  a  grant  by  the  lord.  Therefore  it  can  only  be 
claimed  by  persons  who  are  capable  of  taking  by  grant.  Therefore  it  can- 
not be  claimed,  in  virtue  of  a  local  custom  or  otherwise,  by  an  indefinite 
l)ody,  such  for  instance  as  the  inhabitants  of  a  parish  who  are  not 
a  corporation  (see  Lord  Hatlierley's  observations  in  Warrick  v.  Queen's 
College,  Oxford,  Law  Reports,  6  Chancery  Appeals,  p.  724).  In  many 
places  as  a  fact  the  inhabitants  have  enjoyed  and  exercised  such  quasi 
rights  of  pasturage.  And  there  can  be  little  doubt  that  the  practice 
has  descended  from  very  early  tinies,  and  was  in  fact  a  recognised 
right  in  the  community  inhabiting  the  district  before  the  idea  arose 
that  the  soil  was  tlie  property  of  the  lord.  To  the  same  origin  doubtless 
must  be  deferred  most  of  the  rights  of  a  similar  character  enjoyed  by  free- 
holders and  copyholders.  These  rights  did  not  as  a  fact  originate  in  a  grant, 
they  were  recognised  at  a  time  before  the  notion  of  the  sole  ownership  of  the 
lord  came  into  existence  ;  but  because  of  the  false  historical  theory  that  such 
rights  must  have  been  created  by  grant,  it  has  become  an  established  rule 
in  our  law  that  inhabitants,  unlike  freehold  or  copyhold  tenants,  cannot 
as  such  claim  profits  in  alieno  solo,  and  that  a  custom  to  exercise  such 

K 


130  Extracts  from  Bracton.  [chap.  hi. 

So  far  was  this  carried  that,  on  proof  of  enjoyment  for  a  con- 
siderable period,  juries  were  directed  to  find  that  a  grant  had 
been  made  and  lost  although  distinct  proof  might  be  given  that 
the  enjoyment  had  originated  in  usurpation  before  that  period  \ 
The  rule  was  again  changed  by  the  provisions  of  the  Prescription 
Act,  2  and  3  Will.  IV,  c.  71.  By  that  Act  exercise  and  enjoy- 
ment of  the  easement  or  profit  for  definite  periods  limited  by 
the  Act  have  the  efiect  of  creating  an  indefeasible  title  to  the 
right  in  question  ^. 

These  rights  were  deemed  so  far  to  be  of  the  nature  of  free- 
hold rights  as  that  the  appropriate  remedy  for  disturbance  of 
their  enjoyment  was  by  the  Assize  of  Novel  Disseisin. 

Beacton,  lib.  iv.  cap.  37.  fol.  220.  Pertinent  enim  ad  liberum 
tenementum  jura  sicut  et  corpora^,  jura  sive  servitutes  diversis 
respectibus.      Jura  autem   sive  libertates  dici  poterunt  rations 

alleged  rights  is  invalid.  Where  the  practice  has  been  to  exercise  tlie 
privilege  as  of  right  from  time  immemorial,  great  practical  injustice  is 
often  done  by  the  operation  of  this  rule  of  law.  That  inliabitants  as  such 
could  not  claim  a  right  of  common  was  formally  decided  in  Gateward's 
case  (6  Coke's  Reports,  59  b)  in  4  James  I.  It  appears  from  the  Act, 
43  Eliz.  c.  II,  that  such  rights  were  at  that  time  recognised,  and  that 
an  Act  of  Parliament  was  thought  necessary  for  their  extinguishment  (see 
Elton  on  Commons,  p.  151).  The  Act  provides  for  the  reclamation  of 
certain  marshes  wherein  '  divers  have  common  by  prescription  by  reason  of 
their  resiancie  and  inhabitancie,  whiche  kynde  of  commons  nor  their  interest 
therein  can  by  the  common  law  be  extinguished  or  granted  to  bynde  others 
whiche  shoulde  inhabite  there  afterwardes  '  (Statutes  of  the  Realm,  iv.  977)- 
The  inference  would  seem  to  be  that  the  established  rule  of  law  is  in  fact 
a  creation  of  the  Elizabethan  lawyers.  See  above,  p.  12,  note  2.  Some- 
what inconsistently,  however,  rights  in  the  nature  of  easements  are  still 
recognised  as  capable  of  resting  on  local  custom.  For  example,  a  custom 
to  play  lawful  games  on  a  certain  piece  of  land  was  upheld  in  Fitch  v. 
Rawlings,  2  Henry  Blackstone,  393.  And  a  custom  to  hold  horse-races 
on  a  particular  day  on  a  moor,  in  Mounsey  v.  Ismay,  i  Hurlstone  and 
Coltman,  p.  729.  Doubtless  the  recognition  of  profits  as  being  claimable 
by  custom  would  have  been  more  detrimental  to  the  interests  of  lords  of 
manors  than  the  recognition  of  mere  easements. 

*  See  Gale  on  Easements,  p.  149. 

^  See  Sections  1-3. 

^  See  Justinian's  Institutes,  ii.  tit.  2. 


SECT.  II.  §  17  (i).]     EasemeiUs  and  Profits.  131 

tenementoi'um,  qulhus  debeutur.  Servitutes  vero  ratione  teiic- 
meutorum  a  quibus  debentur  ^,  et  semper  cousistuut  in  alieuo  et 
non  in  proprio,  quia  nemini  servire  potest  suus  fundus  proprius  "^^ 
et  nuUus  hujusmodi  servitutes  constituere  potest  nisi  ille  qui 
fundum  liabet  et  tenemeutum  ^  quia  praediorum  aliud  liberum 
aliud  servituti  suppositum.  Liberum  dici  poterit  quod  in  nuUo 
tenetur  vel  astringitur  praediis  vicinorum.  Si  autem  teneatur, 
dicitur  servituti  suppositum  (juod  prius  fuerat  liberum,  et  hoc 
sive  teneatur  praedio  sive  tenemento  alieno  de  voluntate  et 
constitutione  dominorum,  vel  propter  servitium  certum,  vel 
propter  vicinitatem,  quia,  si  fuerit  incertum,  ut  si  quis  plus 
derlerit  aliquando  minus,  haec  esset  potius  emptio  herbagii  quam 
pastura,  et  hoc  erit  potius  personale  quam  praediale.  Item 
eodem  modo  si  quis  teraporibus  ad  voluntatem  suam.  Item 
herbagium  dici  poterit  si  cui  concedatur,  quia  non  habet  liberum 
teuementum  ad  quod  pertinere  possit.  Et  talis  dici  poterit 
constitutio  qua  domus  domui,  rus  ruri,  fundus  fundo,  tene- 
meutum tenemento  subjungatur,  et  non  tantum  personae  per  se 
vel  teuementum  per  se,  sed  uterque  simul  tarn  tenemeutum 
quam  personae.  Et  ita  pertinent  servitutes  alicui  fundo  ex  con- 
stitutione sive  ex  irapositione  de  voluntate  dominorum.  Item 
pertinere  poterunt  sine  constitutione  per  longura  usum  con- 
tinuum et  pacificum  et  non  interruptum  per  aliquod  impedi- 
meutum  contrariura  ex  patientia  inter  praesentes,  quae  trahitur 
ad  consensum  *.     Et  unde  licet  servitus  expresse  non  imponatur 

'  And  hence  the  expressions  'servient  tenement,'  'dominant  tenement'  have 
taken  root  in  our  law  to  express  respectively  the  land  over  which  the  right 
is  exercised,  and  the  land  to  the  ownership  of  which  the  right  is  attached. 

^  '  Nulli  res  sua  .servit.'     Dig.  lib.  \dii.  tit.  ii.  26. 

^  Compare  Dig.  lilj.  viii.  tit.  iv.  1.  §  i  :  '  Ideo  autem  hae  servitutes  prae- 
diorum appellantur  quia  sine  praediis  constitui  non  possunt.' 

*  The  rule  of  Roman  law  was,  as  laid  down  by  Ulpian  (Dig.  lib.  xli.  tit. 
iii.  10.  §  i),  '  Hoc  jure  utimur  ut  servitutes  per  se  nusquam  longo  tempore 
capi  possint,  cum  aedificiis  possint.'  That  is,  where  a  house  (or  otber  im- 
moveable thing)  which  has  been  acquired  by  usucapio  has  attached  to  it 
certain  rights  over  the  property  of  another,  there  servitudes  are  acquired 
together  with  the  house,  etc.  And  no  servitude  per  se  can  be  acquired  by 
long  user.  The  law  appears  to  have  been  different  in  Cicero's  time,  but 
the  possibility  of  acquiring  servitudes  by  usucapio  was  abolished  as  inc. in- 
sistent with  the  true  principles  of  law  by  the  Lex  Scribonia.  See  Pothier, 
Dig.  lib.  xli.  vii.  Compare  Dig.,  lib.  xli.  43.  §  i  :  '  Incorporales  res  tradi- 
tionem  et  usucapion  em  non  recipere  manifestum  est.'  The  doctrines  of 
Roman  law  as  to  the  acquisition  of  rights  of  ownership  over  things  are 

K  2 


132  Extracts  from  Br  acton.  [chap.  iii. 

nee  constituatur  de  voluntate  domiuorum,  tamen  si  quis  usixs 
fuerit  per  aliquod  tempus  pacifice  sine  aliqua  interruptioue 
uec  vi  nee  elamMiee  precario  ^  quod  idem  est  quod  de  gratia, 
ad  minus  sine  judicio  disseisiri  non  potest;  quia  si  violentia 
adhibeatur  nunquam  erit  jus  disseisitoris  propter  temporis 
diuturnitatem,  nisi  per  negligentiam  ipsius  qui  vim  patitur  ex 
longa  et  pacifica  et  continua  possessione  inter  praesentes,  secus 
inter  absentes^,  et  talis  seisina  multipliciter  poterit  inter- 
rumpi*.  Si  autem  fuerit  seisina  clandestina  scilicet  in  absentia 
dominorum,  vel  illis  ignorautibus,  et  si  scirent  essent  pro- 
hibituri,  licet  hoc  fiat  de  consensu  vel  dissimulatione  bal- 
livorum,  valere  non  debet.  Si  autera  precaria  fuerit  et  de 
gratia,  quae  tempestive  revocari  possit  et  intempestive,  ex  longo 
tempore  non  acquiritur  jus,  nee  in  casu  proximo  notato.  Illud 
autem,  quod  de  gratia  est,  ad  voluntatem  concedentis  revocari 
poterit  quocumque  tempore,  quod  quidem  non  est  in  com- 
modate. Potest  etiam  servitus  ita  constitui  in  proprio,  ne  liceat 
domino  fundi  pascere  in  suo  proprio,  et  sic  constitiiitur  servitus 
in  fundo  alieno,  aliquando  ab  homiue,  aliquaudo  ex  patientia  et 
usu  ^     Et  eodem  modo  impouitur  quandoque  a  jvire  et  nee  ab 

here  adapted  by  Bracton  to  the  acquisition  of  rights  in  re  aliena.  This 
took  root  in  our  law.  The  rights  in  question  can  be  acquired  by  prescrip- 
tion. Eights  of  ownership  over  things  cannot  be  so  acquired,  but  the 
remedies  (and  now  the  rights,  3  and  4  Will.  IV,  c.  27,  s.  34)  of  the  true 
owner  are  extinguished  by  the  lapse  of  a  defined  period. 

1  See  Dig.  lib.  xliii.  tit.  xxiv.  i.  'Praetor  ait,  "  Quod  vi  aut  clam  factum 
est,  qua  de  re  agitur,  id  quum  experiendi  potestas  est  restituas."'  Compare 

xli.  tit.  ii.  6. 

^  'Ait  Praetor,  "  Quod  precario  ab  illo  habes,  aut  dolo  malo  fecisti  ut  de- 
sineres  habere,  qua  de  re  agitur  id  illi  restituas." '  Dig.  xliii.  tit.  xxvi.  2. 
Compare  the  rule  of  our  law  that  continued  enjoyment  in  order  to  give 
a  title  must  be  '  as  of  right.' 

^  Compare  the  Institutes  of  Justinian,  lib.  ii.  tit.  vi.  pr.  '  Immobiles 
[res]  .  .  .  inter  praesentes  decennio,  inter  absentes  viginti  annis  [usu- 
capiuntur].' 

*  The  interruption  must  be  of  the  right  itself,  not  of  the  actual  enjoy- 
ment. Interruption  of  the  right  destroys  the  prescription  or  custom 
(see  Blackstone,  i.  77);  interruption  of  the  actual  enjoyment  or  user, 
however  long  continued,  operates  only  as  some  evidence  that  the  right  has 
been  abandoned  or  released. 

*  This  is  a  correct  description  of '  negative '  easements,  where  one  person 
has,  as  owner  of  tenement  A,  the  right  to  restrain  the  owner  of  tenement 
B  from  putting  his  land  to  uses  which  would,  but  for  this  special  right,  be 


SECT.  II.  §  1/  (i).]     Easements  and  Profits.  133 

liomine  nee  :xb  usu,  scilicet,  ne  quis  faciat  in  proprio  per  quod 
dainiuiin  vel  nocumentum  eveuiat  vicino  \  Nocumentum  enim 
poterit  esse  justum  et  poterit  esse  injuriosum.  Injuriosum  ubi 
quis  fecerit  aliquod  in  suo  injuste  contra  legem  vel  contra  con- 
stitutiouem  prohibitus  a  jure.  Si  autem  prohiberi  a  jure  nou 
possit  ne  faciat,  licet  nocumentum  faciat  et  damnosum,  tamen 
nou  erit  injuriosum,  licitum  est  enim  unicuique  facere  in 
suo  quod  damnum  injuriosum  uon  eveniet  vicino,  ut  si 
quis  in  fundo  proprio  construat  aliquod  molendinum,  et  sectani 
suam  et  aliorum  vicinorum  subtrahat  vicino,  facit  vicino 
damnum  et  non  injuriam,  cum  a  lege  vel  a  constitutione  prohi- 
bitum non  sit  ne  molendinum  habeat  vel  construat  '^.  Item 
a  jure  iinponitur  servitus  praedio  vicinorum  scilicet  ne  quis 
stagnum  suum  altius  toUat  per  quod  tenementum  vicini  sub- 
mergatur.  Item  ne  faciat  fossam  in  suo  per  quam  aquam  vicini 
divertat,  vel  per  quod  ad  alveum  suum  pristinum  reverti  non 
possit  in  toto  vel  in  paite.  Item  ne  quid  faciat  in  suo  quo 
minus  vicinus  suus  omnino  uti  possit  servitute  imposita  vel  con- 
cessa,  vel  quo  minus  commode  utatur  loco,  tempore,  numero  vel 
genere,  qualitate  vel  quantitate.  Et  non  refert  utrum  hoc 
omnino  fecerit  vel  quod  tantundem  valeat  :  ut  si  quis  liabuerit  jus 
eundi  per  fundum  alienum,  non  solum  fticit  disseisinam  si  viam 
obstruat,  sed  si  ire  non  permittat  omnino  commode  vel  ad  usum 
debitum.     Item  si  reficere  viam  non  permittat,  ad  viam  enim 

legitimate.  For  example,  A  who  lias  a  house  with  an  ancient  window 
oveilooking  Bh  land,  can  prevent  B  from  building  on  his  land  so  as  to 
obstruct  the  access  of  light  and  air  to  the  window.  Compare  Dig.  lib.  viii. 
tit.  i.  15:  'Servitutum  non  ea  natura  est,  ut  aliquid  faciat  quis;  veluti 
viridaria  toUat,  aut  amoeniorem  pro.spectum  prp^stet,  aut  in  hoc  ut  in  suo 
pingat ;  sed  ut  aliquid  patiatur  aut  non  faciat.' 

1  This  however  is  not  properly  a  servitude  at  all,  but  part  of  the  general 
rights  attached  to  the  possession  of  property.  For  tlie  distinction  between 
dominium  and  servitus  see  Austin,  vol.  ii.  lect.  slviii. 

^  Bracton  here  correctly  draws  the  distinction  between  damnum — mere 
damage  or  harm,— and  injuria — an  illegal  act  causing  damage.  Obstruct- 
ing a  beautiful  prospect  which  I  have  always  enjoyed  from  the  windows  of 
my  house  is,  in  the  view  of  English  law,  a  mere  damnum ;  diminishing  by 
obstruction  the  quantity  of  light  and  air  which  I  receive  through  ancient 
windows  is  injuria.  '  Sic  utere  tuo  ut  alienum  non  laedas  '  is  said  to  be  the 
maxim  of  our  law.  As  Mr.  Austin  points  out  (ii.  p.  S29),  if  by  'laedas'  is 
meant  mere  damage,  the  maxim  is  untrue  as  a  legal  proposition  ;  if  it  means 
'  injury,'  it  tells  us  nothing,  as  it  affords  no  explanation  of  the  distinition 
between  damage  and  injury. 


134  Extracts  from  Bmdon.  [chap.  hi. 

pertinet  refectio.  Item  eodem  modo  si  omnino  aquam  non  diver- 
tat,  sed  fossam  faciat  vel  purgare  non  permittat ;  quia  ad  aquae 
ductum  pertinet  purgatio,  sicut  ad  viam  pertinet  refectio.  Item 
licet  omnino  non  impediat,  si  fecerit  tamen  quo  minus  commode, 
facit  disseisinam,  ut  si  communiam  habeat  in  certo  loco  cum 
libero  et  competenti  ingressu  et  egressu,  faciat  quis  fossatum  et 
hayam,  murum  vel  pallacium,  per  quod  oportet  me  ire  per  circui- 
tum,  ubi  prius  ingressus  sum  per  compendium,  salvo  tamea 
vicino  jure  suo  si  recenter  ad  querelam  ejus  qui  injuriam  passus 

est    quod     suum    fuerit    exequatur Si    autem    debitum 

modum  excedat  quis  incontinenti  repelli  poterit,  post  tempus 
vero  non  nisi  cum  causae  cognitione  :  et  sic  ut  praedictum  est, 
poterit  quis  habere  servituteui  in  fuudo  alieno  et  uti,  nisi  prohi- 
beatur  ex  justa  causa.  Jura  siquidem  quae  quis  in  fundo  alieno 
habere  poterit,  infiuita  sunt. 


(2)  Rights  of  Common. 

Rights  of  common  have  always  been  the  most  important  class 
of  profits,  and  amongst  rights  of  common  stands  prominent  that 
which  Bractou  here  describes,  common  of  pasture.  Other  rights  of 
common  are  common  of  turbai-y,  or  of  cutting  turf  for  fuel  to  be 
burnt  in  a  house;  common  of  estovers,  or  of  taking  from  another's 
land  timber  or  underwood,  heath,  furse,  fern,  etc.,  to  be  used  for 
fuel,  litter,  fodder  for  cattle,  or  similar  purposes  ;  common  of 
piscary,  or  the  right  of  fishing  in  another's  water.  Of  these  rights 
by  far  the  most  important  is  the  right  of  common  of  pasture. 
Though  there  is  much  that  is  obscure  in  the  history  of  rights  of 
common,  indications  are  not  wanting  which  tend  to  confirm  the 
view  stated  in  the  first  chapter  of  the  growth  of  manors.  It  was 
probably  in  consequence  of  the  change  there  noticed  that  the 
common  or  uncultivated  land  of  the  village  community  was,  in 
process  of  time,  regarded  as  the  sole  property  of  the  lord  of  the 
manor  and  was  called  the  lord's  waste,  and  the  old  customary 
rights  of  the  villagers  came,  as  notions  of  strict  legal  rights 
of  property  were  more  exactly  defined,  to  be  regarded  as  rights 
of  user  on  the  lord's  soil — as  jura  in  re  aliena.  Still  the  name 
remained,  and  attached,  as  is  seen  remai'kably  in  the  following 


SECT.  II.  §  17  (2).]     Rights  of  Common.  135 

passage,  to  the  waste  or  iincultivatefl  land  itself,  which  was  still 
usually  called  common  land,  as  if  the  commoners  had  rights  of 
jn-operty  in  common  over  the  soil  itself,  instead  of  having  simply 
rights  in  alieno  solo. 

An  important  consequence  too  of  the  old  customary  law  is 
found  in  the  fact  that  every  freeholder  holding  lands  within  the 
manor  had,  as  of  right,  common  of  pasturage  on  the  wastes 
as  incident  to  his  lands.  To  every  new  feoffment  therefore 
these  rights  would  attach,  and  this  continued  to  be  the  law  till 
the  passing  of  the  Statute  of  Quia  Emptores,  in  the  eighteenth 
year  of  Edward  the  First.  By  that  Statute  a  mesne  lord  could  no 
longer  make  a  feoffment  of  lands  to  be  held  of  himself;  the  free- 
holder therefore  whose  title  rested  on  a  grant  subsequent  to  that 
Statute  was  no  longer  a  tenant  of  the  manor,  and  could  claim 
no  rights  over  the  wastes  of  the  manor  as  incident  to  his  feoff- 
ment. The  technical  name  for  this  class  of  rights  of  pasturage 
incident  to  freehold  lands  held  of  a  manor  before  18  Edward  I 
is  '  common  appendant.' 

It  seems  from  the  following  passage  that  often  there  were  no 
exact  limits  as  to  the  number  of  beasts  which  a  commoner  might 
put  upon  the  waste  land.  Bracton  however  indicates  that,  at  all 
events  in  the  case  of  a  new  feoffment,  the  number  must  have 
some  relation  to  the  nature  and  size  of  the  land,  and  to  the  pre- 
vailing customs.  In  later  times  the  right  of  the  freeholder 
holding  lands  of  the  lord  of  the  manor  came  to  be  expressly  de- 
fined ^.  He  was  entitled  to  have  common  of  pasture  for  so 
many  beasts  useful  in  agriculture  for  tilling  or  manuring  the 
soil,  as  his  arable  land  would  sustain  during  the  winter.  This  is 
expressed  technically  as  a  right  of  common  of  pasture  for  all 
commonable  cattle  levant  and  couchant  upon  the  lands.  This 
class  of  rights  of  common  of  pasture  enjoyed  by  the  freeholders 
of  the   manor   over   the    wastes    of  the    manor  as    necessarily 


'  It  will  be  borne  in  mind  that  wherever  at  the  present  day  a  freeholder 
holds  of  the  lord  of  a  manor  that  relation  must  have  beon  created  previous 
to  the  eighteenth  year  of  Edward  I.     See  Chapter  IV,  §  5. 


jo6  Extracts  from  Br  acton.  [chap,  in. 

incident  to   their  freeholds  is   the   most  ancient  and  in  early 
times  by  far  the  most  important  class  of  rights  of  common  \ 

If  the  view  above  given   of  the  histoiy   of  these  rights    of 
common  be  correct,  it  will  be  seen  that  the  rights  of  the  com- 
moners and  the  rights  of  the  lord  must  in  very  early  times  have 
come  in  conflict.   Already  in  the  time  of  Glanvill  we  find  the  law 
recognised  and  protected  by  a  regular  form  of  action  the  right  of 
the  commoner,  by  enabling  him  to  bring  an  assize  of  novel  disseisin 
against  any  one  who  disturbed  him  in  the  enjoyment  of  his  right 
of  common  '^.     "Would  this  form  of  action  protect  the  commoner 
against  any  curtailment  of  the  land  over  which  he  exercised  his 
rio-hts  by  the  lord  ?    It  seems  that  the  fair  inference  to  be  drawn 
from  Bracton's  comment  on  the  Statute  of  Merton  (20  Henry  III, 
cap.   4)  is  that  the  lord  had   no   right   independently  of  that 
Statute  to  appropriate  any  portion  of  the  waste  as  against  the 
freeholders   having  rights   of  common   appendant.     The    effect 
of  that  Statute  was  to  establish  the  right  of  the  lord  to  appro- 
priate the  land  over  which  rights  of  common  of  pasture  existed, 
provided  he  left  sufficient  for  the  tenants  of  the  manor  in  con- 
venient places,  with  proper  means  of  access.     This  is  the  footing 
on  which  the  law  as  to  the  respective  rights  of  tha  lord  and  the 
freeholders  of  the  manor  has  rested  ever  since.     The  Statute  of 
Merton  only  applied  to  the  rights  of  common  of  pasture  enjoyed 
by  freehold  tenants  of  the  manor  over  the  wastes  of  the  manor. 
Rights  of  common  enjoyed  by  prescription  or  grant  by  persons 
who  were  not  tenants  of  the  manor  were  beyond  its  scope  ;  nor 
did  it  apply  to  rights  of  cutting  turf  or  peat  (common  of  turbary), 
nor  to  rights  of  taking  '  estovers/  such  as  wood,  gorse,  heath,  or 

fern  ^. 

Rights   of   common,    other   than  those    enjoyed  by  freehold 

1  See  Mr.  Joshua  Williams'  note  on  the  case  of  Lord  Dunraven  v. 
Llewellyn  (15  Queen's  Bench  Reports,  791  ;  Elements  of  Real  Property, 
p.  107),  and  see  the  judgment  of  Lord  Hatherley  in  Warrick  v.  Queen's 
College,  Oxford,  Law  Rep.  6  Ch.  Appeals,  p.  726. 

^  Glanvill,  lib.  xiii.  cap.  37;  .above,  p.  84. 

^  See  Coke's  Second  Institute,  87. 


SECT.  II.  §  17  (2).]     BifjliU  of  Common.  137 

tenants  of  a  manor  as  such,  created  by  grant  or  prescription 
and  attached  to  the  ownership  of  lauds,  are  called  rights  of 
'  common  appurtenant.'  Where,  as  is  usually  the  case,  the 
claim  rests  on  prescription,  it  is  said  in  technical  language  that 
the  tenant  in  fee  of  the  lands  and  all  those  whose  estate  he 
has  ^  have  enjoyed  the  right  from  time  whereof  the  memory  of 
man  runneth  not  to  the  contrary,  or  during  the  period  required 
by  the  Prescription  Act  ^. 

A  right  of  common  may  also  be  granted  to  a  man  and  his 
heirs  irrespective  of  the  ownership  of  any  land,  and  then  it 
descends  like  an  estate  in  fee  simple,  and  is  called  a  right  of 


common  '  m  gross. 


Bracton  points  out  in  the  following  passage  that  the  lord 
could  not  curtail  the  common  over  which  rights  of  common 
appurtenant  or  in  gross  existed,  by  any  right  derived  either  from 
the  common  law  or  from  the  Statute  of  Merton.  A  provision 
however  of  the  Statute  of  Westminster  II  ^  placed  prescriptive 
rights  of  common  of  pasture  appurtenant  upon  the  same  footing 
as  rights  of  common  appendant.  It  should  be  observed  that 
where  the  right  of  common  can  be  traced  expressly  to  a  grant, 
which  gives  the  right  over  a  definite  extent  of  waste  ground, 
the  lord  cannot  enclose  or  curtail  the  common  as  against  his 
own  express  grant. 

The  above  maybe  taken  as  an  outline  of  the  leading  principles 
of  the  law  relating  to  rights  of  common  at  the  present  day  ^ 
Much  waste  land  has  however  from  time  to  time  been  enclosed 
under  local  Acts  of  Parliament,  and  various  general  provisions 
have  been  enacted  pi'oviding  machinery  for  enclosing  commons, 
with  compensation  to  the  owner  of  the  soil  and  the  various 
persons  interested  in  the  laud  ^ 

•  This  is  technically  called  prescribing  in  a  que  estate. 
2  2  and  3  Will.  IV,  c.  71. 

•■'is  Ed.  I,  c.  46,  given  below,  Chapter  IV,  §  4. 

*  The  rights  of  copyhold  tenants  of  the  manor  to  common  resting  on  the 
custom  of  the  manor  will  be  treated  of  in  dealing  with  copyhold  rights 
generally.     See  Chapter  V,  §  6. 

^  See  Stephen,  vol.  i.  pp.  663-666. 


138  Extracts  from  Brncton.  [chap.  ill. 

Bracton,  lib.  iv.  cap.  38.  fol.  222.  Quoniara  magis  Celebris  est 
ilia  servitus  per  quam  conceditur  alicui  jus  pascendi,  ideo  primo 
dicendum  est  de  ilia  quae  dicitur  communia    pasturae.     Com- 
mune autem  nomen  generale  est,  et  convenit  suis  partibus  sicut 
genus  se  habet  ad    suas   species.     Communia    enim   ex  virtute 
vocabuli  componitur  ex  una  et  cum,  et  subintelligitur  communia 
in  alieno  et  una  cum  alio  et  non  in  proprio,  quia  nemini  servit 
fundus   suus    proprius    ut   supra.      Acquiritur    enim  communia 
multis  ex  causis.     Scilicet  ex  causa  donationis,  ut  si  quis  dederit 
terram  cum  pertinentiis  et  cum  communia  pasturae  etc.     Item 
ex  causa  emptionis  et  venditionis,  ut  si  quis  communiam  emerit 
in  fundo  alieno,  ut  pertineat  ad  tenementum  suum,  licet  sit  de 
feodo  alieno  et  di versa  baronia,  et  ex  constitutione  dominorura 
fundorum.      Item    acquiritur    ex    causa    dominorum  fundorum, 
sicut  per  servitium  certum.      Item  ex    causa  viciuitatis,   ut  si 
quis    cum  vicino,  et  vicinus  cum  eo.     Item  ex  longo  usu  sine 
constitutione  cum  pacifica  possessione,  continua  et  non  interrupta, 
ex  scientia,  negligentia,  et  patientia  dominorum,  non  dico  balli- 
vorum,  quia  pro  traditione  accipiuntur,  ita  quod  nee  per  vim  nee 
clam  nee  precario  ut  supra.      Et    eisdem   rationibus   pertinere 
poterit  communia  ad    liberum  tenementum,  in  eo  autem  quod 
C(jramunia  est  nomen  generale  continens  sub  se  plures  species. 
Est  enim  communia  in  eo  quod  dicitur  pastura  de  omni  quod 
edi  poterit  vel  pasci,  large  sumpto  vocabulo  vel  stricte,  large, 
ut  si  quis  habeat  in  alieno  communiam  pasturae,  scilicet  her- 
bagii,  pessonae,  sive  glandis  sive  nucis,  et  quicquid  sub  nomine 
pessonae  continetur.     Item  foliorum  et  frondium  stricte,  scilicet 
a!i([uod    istorum  unum   vel  duo.     Item   distingui  poterit   com- 
munia  pasturae   per    tempora,   ut   si   omni   tempore   vel   certis 
temporibus  et  certis  horis.     Item  per  loca,  ut  si  ubique,  et  per 
totum,    sine    ali([ua    exceptione.     Excipiuntur    tamen   quaedam 
tacite,    et    quandoque    expresse  ,    sicut  rationabilia   defensa,   et 
exigi  non  poterunt  ratione  pasturae,  nisi  specialiter  concedan- 
tur   et   non   nisi  post  tempus,    qualia  sunt  blada,  prata,  ligna, 
Byngheys  sicut  ad  boves  ;  item  ad  vaccas  et  vitulos  suis  tem- 
poribus ;  item  ad  oves  nmltones  et  oves  matrices,  et  agnos  suis 
temporibus.     Item   nee  in  curia  alicujus  nee  in  gardinis,   nee 
in  viridariis  nee  parcis  vel  bujusmodi.     Item  nee  in  dominicis 
alicujus,  quae  claudi  possunt  et  excoli,  nisi  per  modum  certum 
constitutionis,  et  certis  temporibus  vel  certis  locis  et  determi- 
natis  et  infra  certa  loca.     Item  ad  certa  genera  averiorum\  vel 

^  '  of  beasts.' 


SECT,  II.  §  17  (2).]     Bir/Iits  of  Common.  139 

si  ad  omnimoda  averia  et  sine  numero,  vel  cum  coarctatione 
et  cum  numero,  vel  ad  certum  genus  avei-iorum.  Item  notan- 
dum  quod  non  debet  dici  communia,  quod  quis  hal)uerit  in 
alieno  sive  pro  precio,  sive  ex  causa  emptionis,  cum  tenementum 
non  habeat  ad  quod  possit  communia  pertinere,  sed  potius  herba- 
gium  dici  debet  quam  communia  ;  cum  hoe  posset  esse  quasi 
personale  quid,  sive  certum  dederit  quis  pro  herbagio  habendo 
sive  incertum^  Item  communia  dici  poterit  secundum  quod 
Stat  in  generali,  secundum  quod  supra  dictum  est,  lial)ere  jus 
fodiendi  in  alieno,  aurura  scilicet,  et  inde  aurifodina  «lici  potest 
locus  iste.  Item  argentum  et  inde  argentifodina,  et  sic  de 
ceteris  metallis.  Item  jus  fodiendi  lapides,  cretam,  arenam,  et 
turbam^,  et  hujusmodi.  Item  communia  et  non  herbagium,  ut 
jus  falcandi  herbam  vel  brueram  vel  hujusmodi  ad  rationabile 
estoverium.  Item  eodem  modo  ad  secandum  in  alieno  bosco  ad 
rationabile  estoverium  aedificandi,  claudendi,  et  ardendi. 

lb.  fol.  224.  Nemo  potest  communiam  pasturae  clamare  ut 
pertinentem  ad  liberum  tenementum  suum  nisi  ille  qui  liberum 
tenementum  habet  ^  Liberum  autem  dicitur  ad  differentiara 
villenagii  et  villanorum  qui  tenent  villenagium,  quia  non  habent 
actionem  nee  assisam,  sed  dominus  cujus  liberum  tenementum 
villenagium  fuerit. 

lb.  fol,  225.  {Of  defences  open  to  the  tenant  of  the  land 
to  an  assize  of  novel  disseisin  for  disturbance  of  commm 
rights.)  Item  poterit  tenens  respondere  contra  assisam  quod 
querens  nullam  communiam  clamare  potuit  in  tali  loco,  quia 
tenementum  illud  est  suum  separale,  et  quod  illud  includere 
possit  et  excolere  pro  voluntate  sua,  et  inclusum  habere  omni 
tempore.  Ad  quod  querens  (si  possit)  doceat  contrarium  vel 
diversum  per  assisam,  scilicet  quod  nullo  tempore  includi  poterit, 
vel  quod  non  nisi  certis  horis  et  temporibus  ^     Item  respondere 


■  This  distinction  was  not  recognised  in  later  law.  Common  of  pasture 
in  gross,  i.e.  not  appurtenant  to  any  tenement,  is  recognised  as  a  class  of 
rights  of  common. 

2  '  Turf,'  or  peat  — the  well-known  right  called  common  of  turbary. 

5  As  to  the  foundation  of  the  claim  of  copyholders  to  rights  of  common, 
see  Chapter  V,  §  6. 

*  This  i|one  of  the  many  allusions  which  this  passaj;e  contains  to  rights 
of  common  pasturage  enjoyed  over  lands  at  certain  periods  of  the  year, 
which  at  other  times  is  the  separate  property  of  an  individual.  See  above, 
P-  13- 


140  'Extracts  from  Br  acton.  [chap.  iii. 

potest  tenens  et  dicere  quod  ille  qui  queritur  nullum  omnino 
Imbet  tenementum  liberum,  vel  quasi,  ad  quod  aliqua  communia 
pertiiiei'e  possit  vel  etiam  mansiunculam.  Item  dicere  potest 
quod  nulla  communia  pertinet  ad  tale  tenementum  :  quia  illud 
fuit  aliquando  foresta,  boscus,  et  locus  vastae  solitudinis  et  com- 
munia, et  jam  inde  efficitur  assartum  ^,  vel  redactum  est  in  cul- 
turam,  et  non  debet  communia  pertinere  ad  communiam,  et  ubi 
omnes  de  patria  solebant  con>municare  ^.  Ad  hoc  facit  de  Itinere 
W.  de  Ralegh  in  comitatu  War.  assisa  novae  disseisinae  de  com- 
munia pasturae  si  Augustinus,  etc.^  Eodem  modo  dici  poterit 
de  mariscis,  et  aliis  vastitatibus  in  culturam  redactis,  quia  ubi 
eadem  ratio,  ibi  esse  debet  idem  jus. 

lb.  fol.  227.  Item  potest  constitutio  servitutis  aliquando  minui 
et  restringi,  ut  si  prius  constituatur  quod  per  totum  et  ubi  que, 
resti'ingi  poterit  quoad  certum  locum.  .  .  .  Item  quod  prius 
sine  numero,  coarctari  potest  ad  certum  numerum.  .  .  .  Et 
eodem  modo  poterunt  omnia  praedicta  augeri  et  ampliari,  sed 
non  contra  voluntatem  contrahentium ;  quia  per  hoc  competei'et 
assisa  novae  disseisinae  domino  tenementi,  sed  in  contrarium 
per  vim  ageretur,  sicut  competeret  assisa  novae  disseisinae  de 
communia  pasturae  ei  cui  debetur  servitus ;  secundum  modum 
et  constitutionem  servitutis.  Est  tamen  quaedam  constitutio 
quae  dicitur  constitutio  de  Merton,  per  quam  etiam  invito  eo 
cui  servitus  debetur  communia  coarctatur,  unde  primo  videndum 
est  qualis  est  ilia  constitutio,  et  est  talis*  : — 

Quia  multi  sunt  magnates  qui  feoffiwerunt  milites  et  libere 
tenentes  suos  in  maneriis  suis  de  pai'vis  tenementis,  et  qui  im- 
pediti  sunt  per  eosdem  quod  commodum  suum  facere  non  possunt 
de  residuo  maneriorum  suorum,  sicut  de  vastis,  boscis,  et  pasturis 
magnis,  desicut  ipsi  feoffati  sufficientem  habere  possent  pasturam, 
scilicet  quantum  ad  tenementa  sua  pertinet  :  ideo  provisum  est 
et  concessum  ab  omnibus,  quod  cum  hujusmodi  feoftixti  a  quibus- 
cunque  de  cetero  arramaverint  erga  dominos  suos  assisam  novae 
disseisinae  de  communia  j>asturae,  de  hoc  quod  aliquam  partem 
tenementorum  suorum  excolueriut,  si  coram  justiciariis  cognove- 
rint  quod  sufficientem  habeant  pasturam  quantum  ad  tenementum 

^  '  Newly-enclosed  land.' 

^  This  passage  is  a  curious  commentary  on  the  rule  of  law  established 
later,  that  all  rights  of  common  are  traceable  to  a  gi-ant.  g 

^  This  is  the  name  of  the  case  decided  on  the  circuit  in  question. 

*  See  the  text  of  this  statute  as  given  in  the  Statutes  of  the  Realm, 
above,  §  9. 


SECT.  II.  §  17  (2).]     Bights  of  Common.  141 

suum  pei-tinet  cum  libero  ingressu  et  egressu,  et  chaceam  de 
tenementis  suis  usque  ad  pasturam  illam  vel  viam,  tunc  indc  sint 
contenti,  et  illi  de  quibus  tales  questi  sunt,  quieti  sint  de  hoc 
quod  comniodum  suuui  ita  feceriut  de  terris,  vastis,  et  pasturis 
suis.  Si  autem  dixerint  quod  sufficientem  pasturam  non  habu- 
erint,  quantum  pertinet  ad  tenementa  sua,  cum  sufficienti  in- 
gressu et  egressu,  tunc  inde  inquiratur  Veritas  per  assisam.  Et 
si  per  assisam  recognitum  fuerit  quod  in  aliquo  inq)ediverint 
ipsius  domini  iugressum  vel  egressum,  vel  quod  habeant  suffi- 
cientem pasturam,  secundum  quod  praedictum  est,  tunc  recupe- 
rant  querentes  seisinam  suam  per  visum  i-ecognitorum,  ita 
quod  per  discretionem  et  sacrumentum  eorundem  habeant  con- 
querentes  sufficientem  pasturam  cum  sufficienti  et  competenti 
ingressu  et  egressu,  in  forma  praedicta,  et  disseisitores  in 
misericordia,  et  damna  reddant  sicut  prius  reddi  solent  ante 
provisionem  istam.  Si  autem  recognitum  fuerit  per  assisam 
•quod  querentes  sufficientem  habeant  pasturam,  cum  libero  in- 
gressu et  egressu  secundum  quod  praedictum  est,  tunc  licite 
faciant  domini  sui  commodum  de  residuo,  et  in  quo  casu,  si 
quis  liber  homo  feofiatus  fuerit  per  aliquem,  et  occasione  ali- 
cujus  assisae  captae  vel  alia  occasione,  vel  si  non  permiserit 
domiuum  suum  includere,  vel  si,  cum  incluserit,  hayas  suas 
fregerit  et  fossata,  et  muros  suos  prostraverit  per  vim  cui 
resisti  non  possit,  competit  domino  breve  domini  regis  in  hac 
forma  : — 

Eex  vicecomiti  salutem.  Ostensum  est  nobis  ex  parte  A  quod 
cum  in  curia  nostra  coram  nobis  et  consilio  nostro  sit  provisum 
et  concessum  quod  magnates  Angliae  et  milites  et  alii  qui  liberos 
tenentes  suos  feoffaverint  de  parvis  tenementis  in  maneriis  suis 
commodum  suum  facere  possint  de  residuo  maneriorum  suorum 
sicut  de  vastis,  boscis  et  pasturis,  si  ipsi  feoffati  sufficientem 
habeant  pasturam  quatenus  ad  tenementa  sua  pertinet  cum 
libero  ingressu  et  egressu,  et  ipse  A  parcum  suum  per  multum 
tempus  jam  inclusum  habuit,  boscum  vel  hujusmodi  ;  B  qui 
parvum  tenementum  habet  in  eadem  villa,  vel  alia,  et  de  feodo 
ipsius  A,  occasione  cujusdam  assisae  novae  disseisiuae  inter 
eosdem  A  et  B  nuper  captae  de  communia  pastui'ae  ipsius  B 
quam  pertinere  dixit  ad  liberum  tenementum  suum  in  eadem 
villa,  non  permittit  ipsum  A  parcum  suum  habere  inclusum, 
immo  hayas  suas  frangit  et  fossata,  desicut  communiam  pasturae 
habere  poterit  sufficientem  extra  parcum  vel  boscum  ilium, 
quatenus  ad  tenementum  suum  pertinet  cum  libero  ingressu  et 
egressu  :  et  ideo  tibi  praecipimus  quod  assumptis  tecum  liberis 


142  Extracts  from  Br  acton.  [chap.  hi. 

et  legalibus  homiuibus  de  proximo  vicineto,  per  quos  rei  Veritas 
etc.,  in  propria  persona  tua  accedas  apud  talem  villam  et  per 
eorum  sacramentuni,  etc.,  si  praedictus  B  sufficientem  possit 
habere  pasturam  extra  praedictum  parcum  vel  boscum  quatenus 
pertinet  ad  liberum  teuementum  suum  in  eadem  villa  cum  libero 
ingressu  et  egressu  vel  non.  Et  si  ita  esse  inveneris  tunc  eideni 
A  pacem  inde  habere  facias  ne  amplius,  etc.     Teste,  etc. 

Ad  quod  imprimis  videndum  est  qualiter  constitutio  ilia  sit 
intelligenda,  ne  male  intelleeta  trahat  utentes  ad  abusum.  Videri 
oportet  utrum  ille  quem  restringit  constitutio,  sit  liber  homo 
proprius  vel  alienus  ^  Si  autem  sit  alienus  non  ei  imponit 
legem  constitutio ",  tum  quia  habet  servitutem  illam  forte  sicut 
ex  consensu  et  conventione  ubique,  quae  dissolvi  non  potest  nee 
per  contrariam  voluntatem  et  dissensum,  turn  quia  non  feoffatus 
est  per  dominum  soli,  quod  coarctari  potest  ad  certum  numerum 
et  determinatum  secundum  quantitatem  sui  tenementi.  Et 
unde  in  hoc  casu  si  dominus  soli  et  proprietatis  sibi  velit 
aliquid  appropriare^  et  includere,  hoc  facere  non  poterit  sine 
voluntate  et  licentia  praedictorum,  et  si  fecerit  per  assisam 
recuperabunt  *.  Si  autem  fueriut  libera  tenentes  proprii  tunc 
refert  qualiter  fuerint  feoffati,  quia  non  omnes  nee  in  omnibus 
per  constitutionem  restriuguntur,  et  ideo  videndum  erit  utrum 
feoffati  fuerint  large,  scilicet  per  totum  et  ubique,  et  in  omnibus 
locis,  et  ad  omnimoda  averia  et  sine  numero,  et  ita  tamen  quod 

"  That  is,  whether  or  not  he  be  a  tenant  of  the  manor  over  the  wastes 
of  which  the  right  of  common  is  claimed. 

2  The  Statute  of  Merton  regulated  the  respective  rights  of  the  lord  of 
the  manor  and  his  tenants  over  the  waste.  It  did  not  affect  the  rights  of 
persons  who  had  rights  of  common  appurtenant  to  freeholds  outside  the 
manor.  The  lord  could  not  by  this  Statute  enclose  the  waste  so  as  to 
curtail  rights  of  common  appurtenant.  By  the  Statute  of  Westminster  II, 
13  Edward  I,  c.  46  (see  Chap.  IV,  §  4),  the  provisions  of  the  Statute  of 
Merton  were  extended  to  cover  the  relations  of  the  lord  and  commoners 
having  rights  of  common  appurtenant. 

^  Hence  probably  the  expressions  'approve,'  'right  of  approve- 
ment.' 

*  This  passage  throws  light  on  the  much  disputed  question  whether  this 
right  of  appropriation  or  approvement  belonged  to  the  lord  at  common 
law  or  rested  on  the  Statutes  of  Merton  and  Westminster  11. 
Bracton's  authority,  particularly  valuable  as  being  contemporary  evidence, 
is  express  that  the  right  rested  on  Statute,  and  that  except  for  the  Statute 
the  lord  could  not  have  '  approved '  at  all.  See  Coke's  Second  Institute, 
pp.  85,  474 ;  Grant  v.  Gunner,  1  Taunton's  Eep£)rts,  p.  435. 


SECT.  II.  §  17  (2).]     Big/ds  of  Common.  143 

liujusmodi  communia  ad  ipsos  pertineat  ratione  feofFamenti,  et 
non  propter  usum,  tales  11011  ligat  coustitutio  memorata,  (juia 
feoffamentum  non  tollit  licet  tollit  abusum,  et  maxinie  ])ru])ter 
conseusum  eorum  voluntarium  qui  servituteni  et  coniiuuuiani 
concesserunt  ^  Si  auteni  communia  fuerit  stricta  cum  numero 
averiorum  certo  et  determinato,  licet  usus  se  largius  et  latins 
habuerit  qnam  necesse  esset,  tales  ligat  constitutio,  quod  coarc- 
tentur  ad  certum  locum  et  infra  certum  locum,  dum  tamen  locus 
ille  sufficiens  sit  et  competens  cum  libero  ingressu  et  egressu  et 
competenti,  quod  non  sit  gravis  nee  diffieilif^.  Competens  autem 
debet  esse  locus,  ita  quod  nou  longius  distet  sed  propinquius 
assignetur.  Item  eodem  mode  si  ita  feoffatus  fuerit  quis,  sine 
expressione  numeri  vel  generis,  sed  ita,  cum  pastura  quantum 
pertinet  ad  tantum  tenementum  in  eadem  villa,  talem  ligat 
constitutio  sicut  prius  cum  expressione  ;  quia  cum  constet  de 
quantitate  tenementi,  de  facili  perpendi  poterit  de  numero 
averiorum  et  etiam  de  genere,  secundum  consuetudinem  loco- 
rum.  Item  si  qualitercunque  usus  fuerit  vel  feoffatus  large 
vel  stricte,  si  loco  competenti  usus  fuerit,  et  sive  coarctari  possit 
sive  non,  non  tamen  coarctari  debet  cum  damno  et  gravamina 
ad  locum  lonerius  distantem,  cum  distantia  inducunt  incommodi- 
tatera.  Et  eodem  modo  coarctari  non  debet,  nisi  velit,  si  ac- 
cessus  sit  difficilior.  .  .  .  Item  tempus  spectandum  erit,  scilicet 
quod  tenementum  tempore  feoffamenti  jacuit  incultum,  et  quod 
tenementum  redactum  fuit  in  culturam.  Item  quod  tenementum 
sit  pratum,  et  quod  inclusum  et  jjosituin  in  defensuni,  cum 
nemo  possit  communiam  petere  in  aliquo  tenemento,  quod  ex- 
coli  possit,  vel  includi,  vel  poni  in  defensum  omni  tempore  vel 
saltem  aliquo,  et  ex  aliqua  generali  constitutione,  ut  si  quis 
dicat,  '  do  tibi  tale  tenementum  cum  communia  pasturae  quae 
pertinet  ad  tantum  tenementum  in  tali  villa  cum  certo  numero 
averiorum,  vel  sine  numero,'  hoc  intelligendum  erit  de  communia 
pasturae,  quae  communis  esse  debet,  et  pertinere  ad  liberuni 
tenementum,  hoc  est  non  tenemento  quod  possit  excoli,  vel 
licito,  sed  non  omni  vel  aliter  dum  includitur  vel  ponitur  in 
defensum  tempore,  vel  si  singulis  annis  possit  includi  et  poni 
in  defensum  et  excoli,  vel  alio  quod  possit  includi,  nisi  hoc  facit 
specialitas  et  modus  constitutionis  servitutis,  vel  longus   usus 

^  This  appears  to  mean  that  even  in  the  case  of  freehold  tenants  of  a 
manor,  if  rights  of  common  appendant  had  been  expressly  granted  over  the  , 
whole  waste,  &c.,  the  lord  could  not  approve  so  as  to  derogate  fi-om  his 
express  grant. 


144  Extracts  from  Br  acton.  [chap.  iir. 

continuus  et  pacificus\  Modus  constitutionis  servitutis  ut  si 
dicat  quis,  '  do  tibi  tantam  terram  cum  communia  pasturae  ad 
tot  averia  etc.  per  totam  terram  meam  ubique  in  terris  colendis, 
pratis,  et  clausis,  et  in  omnibus  locis,'  et  hoc  non  erit  sic  intel- 
ligendum  quod  omni  tempore,  nisi  tantum  temporibus  compe- 
tentibus,  scilicet  post  blada  asportata  et  faena  levata,  vel  quando 
tenementum  jacet  incultum  ad  waractum,  vel  si  dicat  expresse 
sic,  '  ubique  scilicet  c[uando  tenementum  jacet  incultum  etc'  non 
propter  hoc  impediri  debet  dominus  quin  terram  suam  excolat 
quolibet  anno  si  velit,  quia  non  imponit  sibi  ipsi  servitutem  per 
hoc  quin  possit.  Si  autem  ita  dicat,  '  cum  pastura  per  totum  et 
in  omnibus  locis,  et  secundo  anno  vel  tertio  in  terra  colenda, 
in  terra  colenda  quando  jacet  ad  waractum,'  et  adhuc  idem  erit 
ubi  jacuerit  ita  ut  dicitur,  quia  bene  poterit  esse  quod  nunquam 
jacebit,  nee  imponitur  ei  necessitas  quod  non  colat,  quia  per  hoc 
non  includit  se  quin  possit.  Si  autem  sic  dicat,  '  omni  tempore 
et  in  omnibus  locis,  scilicet  quod  secundo  anno  jaceat  campus 
ad  waractum  vel  incultus  vel  apertus  et  quod  tali  tempore 
communiam  habeat,'  tali  tempore  excoli  non  possit  nee  includi, 
et  maxime  ubi  hoc  facit  longus  usus  vel  consuetudo  a  vicinis 

^  The  import  of  this  passage  seems  to  be  that  frlma  facie  the  right  of 
common  extends  only  over  the  waste  or  uncultivated  lands  properly  so 
called.  It  was  however  not  unusual  for  rights  of  common  pasturage  to 
exist  over  cultivated  lands  between  harvest  and  seedtime.  See  Nasse, 
)).  46.  Tliis  was  called  in  later  times  common  of  shack  :  see  Corbet's  case, 
above,  p.  13.  In  the  same  way  there  might  be  rights  of  common  pasturage 
over  meadows  after  the  removal  of  the  hay-crop,  until  the  grass  began  to 
grow  again.  And  so  where  the  system  prevailed  of  cultivating  the  lands  in 
common  on  the  three-field  or  two-field  system,  that  is,  where  the  individual 
plots  of  the  various  landowners  of  the  community  were  not  divided  from 
each  other,  but  all  were  cultivated  upon  a  connnon  plan,  being  divided 
into  two  or  three  fields,  one  of  which  was  left  fallow  every  year, 
rights  of  common  pasturage  were  often  recognised  over  the  fallow  land. 
These  rights  of  pasturage  were  however,  as  it  would  appear  from  this 
passage,  exceptional,  and  must  either  be  expressly  granted,  or  proved  as  a 
local  custom.  See  Nasse,  pp.  46-50.  These  are  amongst  the  rights  which, 
owing  to  the  fiction  noticed  above  (p.  1 29),  that  they  must  originally  have  been 
created  by  grant,  it  has  become  impossible  to  sustain  in  a  court  of  law 
unless  either  they  are  claimed  by  copyhold  tenants  of  a  manor  under  a 
custom,  or  by  freeholders  as  appurtenant  to  their  tenements.  A  custom 
for  all  the  inhabitants  of  a  district  to  turn  out  cattle  on  the  waste,  stubbles, 
meadows,  or  fallows,  though  doubtless  the  origin  of  the  quasi-right,  would 
be  invalid. 


SECT.  II.  §  1 7  (2).]     Rights  of  Common.  145 

approbata  et  dominis,  quae  pro  lege  observari  debet  inter  tales  \ 
Item  vel  ubi  hoc  faciat  vicinitas,  et  sine  constitutione  ^.  Poterit 
autem  esse  servitus  personalis  et  realis'^.  Item  personalis  et 
realis  certis  horis  et  certis  temporibus.  Item  personalis  tantum 
et  sic  debetur  personis  et  non  tenementis,  et  quae  propria  dici 
potest  herbagium.  Item  localis  et  non  certis  personis,  sicut 
alicujus  civitatis,  burgensium  et  civium*,  et  omnes  conquer! 
possunt  et  unus  nomine  universitatis. 

^  The  whole  of  this  passage  is  remarkable,  as  showing  the  great  strength 
and  vitality  of  common  rights  at  this  time. 

^  That  is,  the  prescriptive  rights  of  neiglibours  apart  from  any  relation- 
ship of  lord  and  tenant  may  be  of  the  same  character.  There  is  a  distinct 
class  of  rights  of  common  called  common  ^)jtr  cause  de  vicinage.  For 
instance,  if  there  are  adjoining  wastes  A  and  B  belonging  to  different 
manors,  a  commoner  who  is  entitled  to  put  his  cattle  on  common  A,  may 
be  also  entitled  to  have  them  permitted  to  stray  into  common  £.  In  this 
case  he  is  said  to  have  common  rights  pur  cause  de  vicinage  in  common  B. 
This  right  of  common  is  said  to  be  more  properly  an  excuse  for  a 
trespass. 

'  This  points  to  the  distinction  between  rights  appurtenant  to  land,  that 
is,  enjoyed  by  the  successive  owners  of  a  piece  of  land  as  and  being  such 
owners,  and  passing  by  alienation  of  the  praedium  dominans,  and  rights 
in  gross,  or  rights  {in  rem,  of  property,  available  against  third  persons, 
opposed  to  rights  in  personam)  not  attached  to  the  ownership  of  a  prae- 
dium dominans,  or  as  they  were  called  later,  rights  '  in  gross.'  Compare 
Dig.  lib.  viii.  tit,  i.  i  :  '  Servitutes  aut  personarum  sunt,  ut  usus  et  usus- 
fructus,  aut  rerum,  ut  servitutes  rusticorum  praediorum,  et  urbanorum.' 

*  Both  rights  of  property  in  the  land  itself,  and  rights  over  the  land  of 
another,  might  be  granted  (apart  from  the  Statutes  of  Mortmain)  to  a 
corporation.  Therefore  the  rule  that  inhabitants  as  such  cannot  claim  a 
profit  in  alieno  solo  (see  above,  p.  1 29,  note  2)  does  not  apply  where  the 
rights  are  claimed  in  the  name  of  a  corporation.  A  corporation  may 
claim  such  rights  by  prescription,  because  the  rights  might  by  legal  possi- 
bility have  originated  in  a  grant.  Bracton's  language  no  doubt  points  to 
the  actual  historical  origin  of  these  rights,  namely,  that  they  were  local 
customs  which  became  legalised.  The  theory  of  the  later  lawyers  excluded 
from  the  category  of  legal  rights  all  profits  not  capable  of  originating  in 
a  grant. 


CHAPTER   IV. 

LEGISLATION  OF  EDWAUD  L 

-L  HE  reign  of  Edward  I  was  a  period  of  great  legislative 
activity.  Tlie  statutes  passed  in  this  reign  introduced  some 
important  changes,  which  have  affected  the  subsequent  history 
and  the  present  condition  of  the  law.  Besides  the  changes 
effected  by  new  enactments,  the  regular  action  of  the  courts  pro- 
ceeds, and  with  it  the  development  and  definition  of  the  law. 
The  series  of  regular  reports  called  the  Year  Books  begins  with 
the  reign  of  Edward  II,  and  contains  reports  of  cases  decided  to 
the  end  of  the  reign  of  Edward  III,  and  from  the  beginning  of 
the  reign  of  Henry  IV  to  the  end  of  that  of  Henry  VIII'. 

The  text-books  of  this  reign,  of  which  the  principal  are  the 
treatises  of  Britton^  and  Eleta^  (the  Mirror  of  Justices  is  probably 

'  See  Reeves,  ii.  p.  229.  There  have  been  lately  published  in  the  series 
under  the  direction  of  the  Master  of  the  Rolls,  fi"om  a  MS.  in  the  Cambridge 
University  Library,  two  volumes  called  Year  Books,  containing  reports  of 
cases  decided  on  the  itinera  of  the  judges  and  at  Westminster  in  the  20th 
and  2 1st  and  the  30th  and  31st  years  of  Edward  I.  See  preface  to  Year 
Books,  30  and  31  Edv^rard  I,  p.  xxii.  The  reports  of  the  reign  of  Richard  II 
are  contained  in  a  volume  styled  Bellewe's  Reports. 

^  There  is  great  doubt  as  to  the  authorship  of  Britton.  Some  have 
thought  that  the  name  is  identical  with  Bracton,  and  that  the  work  is 
merely  an  authoritative  abridgment  of  Bracton  ;  others  have  ascribed  it  to 
an  independent  writer.     See  Nichols'  Britton,  preface,  pp.  xviii-xxvii. 

^  So  named  because  it  was  written  by  some  lawyer,  perhaps  a  judge, 
during  imprisonment  in  the  Fleet.    (Fleta,  preface.) 


A  Manor  in  the  time  of  Edward  1.  147 

to  be  ascribed  to  the  reign  of  Edward  II),  add  but  little  to  the 
great  treatise  of  Bracton.  The  treatise  called  Fleta  carries  the  law 
down  to  a  point  later  than  the  thirteenth  year  of  the  king,  and 
contains  comments  on  the  changes  in  the  law  since  Bracton 
wrote  ^ 

The  changes  of  historical  importance  in  the  law  relating  to  land 
which  were  effected  by  new  legislation  during  this  reign  will  be 
seen  from  the  following  statutes ;  the  development  of  the  common 
law  effected  by  judicial  decisions  is  reserved  for  the  next  chapter. 

The  statutes  of  this  reign  are  usually  in  Latin,  though  some 
are  in  French,  and  in  one  case  a  chapter  of  a  statute  is  partly  in 
Latin,  partly  in  French^.  It  seems  impossible  to  lay  down  any 
principle  by  which  the  choice  of  the  language  was  regulated. 
'  Both  the  Latin  and  French  were  the  languages  of  the  law,  and 
probably  were  adopted  according  to  the  whim  of  the  clerk  or 
other  person  who  drew  up  the  statute  ^.' 

^  \.  A  Manor  in  the  time  of  Edioard  I. 

The  following  Statute,  though  not  making  any  change  in  the 
positive  law  relating  to  land,  is  valuable  as  showing  clearly  the 
legal  conception  of  a  manor  in  the  time  of  Edwai'd  I.  '  In  myn 
opinion  this  statute  was  made  sone  after  the  barons'  warre,  the 
whyche  ended  at  the  battayle  of  Evesham,  or  sone  after  in  the 
tyme  of  Kynge  Henry  the  thyrde,  where  as  many  noblemen  of 
bloud  were  slayne,  and  many  fled  that  aftenvard  were  attaynted 
for  the  treason  they  did  to  the  Kynge.  And  by  reason  thereof 
their  castelles  and  manours  were  seased  into  the  Kynge's  handes. 
And  so  for  want  of  reparations  the  castelles  and  the  manoi's  fell 
to  ruine  and  in  decaye.  And  when  the  Kynge  and  his  counsayle 
saw  that,  they  thought  it  was  better  to  extende  them  and  make 

^  The  other  treatises  which  were  published  in  this  reign  were  An  Abbre- 
viation of  Bracton  by  Gilbert  de  Thornton,  the  Summa  Magna  and  Parva  of 
Radulph  de  Hengham,  and  a  small  tract  called  Fet  Assavoir. 

2  Statute  West.  II,  ch,  34. 

'  Reeves,  ii.  p.  228. 

L  2 


148  Legislation  of  Edward  /.  [chap.  iv. 

the  most  profit  that  they  coucle  of  them  than  to  lette  them  fall 
to  the  grounde,  and  come  to  no  manne's  helpe  and  profyte. 
Wherefore  Kynge  Edwarde  the  first  ordeyned  this  statute  to  be 
made  the  fourth  year  of  his  reigne,  wherein  is  contayned  many 
and  dyvers  chapters  and  articles,  the  which  at  that  tyme  was 
but  instructions,  how  and  what  they  shuld  do  that  were  commis- 
sioners or  surveyours  in  the  same.' — (Fitzherbert's  Surveyinge, 
chap,  i :  a.d.  1539.) 

ExTENTA  Maneeii)  4  Edward  I,  Stat.  i. 

Inprimis  inquirendum  est  de  castris,  et  aliis  edificiis  fossatis  cir- 
cumdatis,  et  quantum  muri,  et  edificia  lignea  et  lapidea,  plumbo 
vel  alio  modo  cooperta,  valeant,  et  pro  quanto  poterunt  appre- 
ciari,  secundum  verum  valorem  eorundem  murorum  et  edifici- 
orum,  et  pro  quanto  edificia  extra  fossatum  poterunt  appreciari,  et 
quantum  valeant,  una  cum  gai'dinis,  columbariis,  et  omnibus  aliis 
exitibus  curiae  per  annum. 

Item  inquirendum  est  quot  campi  sunt  in  dominico^,  et  quantum 
quaelibet  acra  per  se  valeat  ad  locandum  per  annum,  et  ad  cujus- 
modi  bestias  et  animalia  pastura  ilia  fuerit  magis  necessaria,  et 
quot  et  quales  posset  sustinere,  et  quantum  valet  pastura  cujus- 
libet  bestiae  et  animalis  per  se  per  annum  ad  locandum. 

Item  inquirendum  est  de  pastura  forinseca,  quae  est  communis  ^, 
et  quot  et  quales  bestias,  et  quot  animalia,  et  quae  dominus 
habere  possit  in  eadem,  et  quantum  valet  pastura  cujuslibet 
bestiae  et  animalis  per  se  per  annum  ad  locandum. 

Item  inquirendum  est  de  parcis  et  dominicis  boscis  quae 
dominus  ad  volitntatem  suam  possit  assartare  et  excolere  ^  et  quot 
acras  in  se  contineant,  et  pro  quanto  vestura  cujuslibet  acrae 
poterit  appreciari,  et  quantum  in  se  contineant  et  valeant  quando 
prostrati  fuerint,  et  quantum  valet  quaelibet  acra  per  se  per 
annum. 

Item  inquirendum  est  de  boscis  forinsecis,  ubi  alii  communicant, 
quid  de  eisdem  boscis  dominus  sibi  possit  approvare*,  et  de  quot 

'  See  above,  pp.  17,  40,  41.  *  See  above,  Chap.  Ill,  §  17  (2). 

'  This  probably  refers  to  the  parks  and  other  enclosures  which  had 
been  made  under  the  provisions  of  the  Statute  of  Merton.  See  Chap.  Ill, 
§§  9,  17  (2),  above,  p.  140. 

*  That  is,  what  further  enclosures  can  be  made  without  derogation  to 
rights  of  conunon  enjoyed  by  freeholders  who  are  not  tenants  of  the  manor ; 
see  below,  §  4. 


§  I.]  JExtenta  Ilanerii.  149 

acris,  et  pi"o  ([uauto  vestura  cujuslibet  acrae  communiter  possit 
appreciari,  et  quantum  fundus  valet  quando  prostratus  fuerit. 
Item  inquirendum  est  utrum  dominus  de  residue  boseorum 
praedictorum  dare  possit,  et  quantum  valeant  hujusmodi  dona- 
tiones  et  venditiones  per  aiumm. 

Item  inquirendum  est  de  pannagio  et  herbagio,  melle,  oleri- 
bus,  et  omnibus  aliis  exitibus  vivariorum,  mariscorum,  morarum, 
bruerarum,  turbariarum,  et  vastorum,  quantum  valeant  per 
annum. 

Item  de  molendinis,  piscariis  separalibus  et  communibus, 
quantum  valeant  per  annum. 

Item  de  liberis  tenentibus^  quibuscunque  forinsecis^  vel  in- 
trinsecis  inquii-endum  est,  et  quot  sunt  libere  tenentes,  et  qui, 
et  quas  terras,  et  quae  tenementa,  et  quae  feoda  teneant,  et 
per  quod  servitium,  utrum  videlicet  per  socagium,  vel  per  servi- 
tium  militare,  vel  alio  modo,  et  quantum  valeant  et  reddant  per 
annum  de  redditu  assisae,  et  qui  teneut  per  cartam,  et  qui  non, 
et  qui  tenent  per  antiqi;am  tenuram,  et  qui  per  novum  feoffa- 
mentum.  Item  inquirendum  est  de  pi-aedictis  libere  tenentibus 
et  qui  sequuntur  curiam  a  comitatu  in  comitatum,  et  qui  non, 
et  quantum  et  quid  accidit  domino  post  mortem  taliuni  libere 
tenentium. 

Item  inquirendum  est  de  custumariis  ^,  quot  sunt  custumarii, 
et  quantum  terrae  quilibet  custumarius  tenet,  et  quae  opera  et 
quas  consuetudines  faciant,  et  quantum  valeant  opera  et  consue- 
tudines  cujuslibet  custumarii  per  se  per  annum  [ad  locaudum, 
et  quantum  reddant  de  redditu  assisae]  praeter  opera  et  con- 
suetudines, et  qui  possint  talliari  ad  voluntatem  domini,  et 
qui  non. 

Item  inquirendum  est  de  coterellis  *  qui  cotagia  et  curtilagia 
teneant,  et  per  quod  servitium,  et  quantum  reddant  per  annum 
pro  praedictis  cotagiis  et  curtilagiis. 

Item  inquirendum  est  de  placitis  et  perquisitis  comitatuum,  et 
curiarum  forestarum,  cum  expeditacione  canum,  et  quantum 
valeant  per  annum  in  omnibus  exitibus. 

Item  inquirendum  est  de  ecclesiis  quae  pertinent  ad  donacionem 


1  See  above,  pp.  36-40. 

*  '  Forinseci  tenentes '  are  probably  those  tenants  wbo  hold  of  the  lord  of 
the  manor  as  a  fact,  but  whose  tenements  are  not  within  the  ambit  of  the 
manor,  and  who  are  therefore  not  tenants  of  the  manor. 

3  See  above,  p.  41,  Chap.  Ill,  §  12  ;  and  below,  Chap.  V,  §  6. 

*  See  above,  p.  41. 


150  Legislation  of  Edward  I.  [chap.  iv. 

domini'  quot  et  quae  sunt,  et  ubi  et  quantum  valeut,  et  quantum 
quaelibet  ecclesia  valet  per  annum  per  se,  secundum  verum  val- 
orem illius. 

Item  inquirendum  est  quid  valeant  herietta,  nundinae, 
merclieta,  consuetudines  et  servitia,  operaciones,  consuetudines 
forinsecae,  et  quantum  valeant  placita  et  perquisita,  fines  et  relevia 
et  omnia  alia  casualia  quae  accidere  possunt  per  annum. 

§  2.  Alienation  in  Mortmain. 

It  appears  from  the  following  Statute  that  the  provision  in 
Magna  Carta  "^  given  in  the  last  chapter  was  construed  as  an  ab- 
solute prohibition  against  gi-anting  lands  to  religious  houses.  The 
prohibition  is  now  extended  so  as  to  prevent  any  alienation  of 
lands  '  per  quod  ad  manum  mortuam  deveniant.^  Lands  were  said 
to  come  into  a  'dead  hand'  when  they  were  held  not  by  an  indi- 
vidual tenant,  but  by  a  corporation  or  body  ^.  This  expression  was 

^  '  Advowsons  are  either  advowsons  appendant  or  advowsons  in  gross. 
Lords  of  manors  being  originally  the  only  founders,  and  of  course  the  only 
patrons,  of  churches,  the  right  of  patronage  or  presentation,  so  long  as  it 
continues  annexed  to  the  possession  of  the  manor,  as  some  have  done  from 
the  foundation  of  the  church  to  this  day,  is  called  an  advowson  appendant  : 
and  it  will  pass,  or  be  conveyed,  together  with  the  manor,  as  incident 
and  appendant  thereto,  by  a  grant  of  the  manor  only,  without  adding  any 
other  words.  But  where  the  property  of  the  advowson  has  been  once  sepa- 
rated from  the  property  of  the  manor  by  legal  conveyance,  it  is  called  an 
advowson  in  gross,  or  at  large,  and  never  can  be  appendant  any  more  ;  but 
is  for  the  futvire  annexed  to  the  person  of  its  owner,  and  not  to  his  manor 
or  lands.'     Blackstone,  ii.  22. 

^  Cap.  43.  ed.  121 7  ;  above,  Chap.  Ill,  §  8. 

^  A  corporation  is  a  fictitious  person  invested  by  the  law  with  the  at- 
tribute of  perpetuity.  This  fictitious  person  may  be  (i)  a  corporation 
aggregate,  that  is,  may  consist  of  many  individual  persons  united  together 
by  the  law,  the  aggregate  thus  formed  continuing  for  ever  by  a  perpetual 
succession  of  individual  members  :  such  as  the  mayor  and  commonalty  of  a 
city,  the  head  and  fellows  of  a  college,  the  dean  and  chapter  of  a  cathedral 
church.  Such  a  body  can  only  act  in  its  corporate  capacity  by  the  use  of 
the  '  common  seal.'  The  two  characteristics  of  a  corporation  aggregate  are 
that  it  possesses  perpetual  succession,  and  a  common  seal.  (2)  A  cor- 
poration sole  is  where  a  person  and  his  successors  in  infinitum  fill  a  definite 
office  or  station  which  confers  a  special  status  or  collection  of  rights  and 
duties,  such  as  the  king,  a  bishop,  or  the  parson  of  a  parish.  See  Black- 
stone,  i.  p.  469. 


§  2.]  Mortmain.  151 

probably  first  applied  to  the  holding  of  lands  by  religious  bodies 
or  persons  who,  being  '  professed,'  were  reckoned  dead  persons  in 
law.  It  then  came  to  be  applied  to  the  holding  of  lands  by 
corporations  as  opposed  to  individuals,  whether  the  corporation 
be  ecclesiastical  or  lay,  sole  or  aggregate. 

An  attempt  was  made  soon  after  the  passing  of  this  Statute  to 
evade  its  provisions  by  bringing  collusive  actions  for  the  recovery^ 
of  land,  in  which  the  '  religious  men  and  other  ecclesiastical  per- 
sons' sued  the  tenant,  who  thereupon  by  arrangement  made  default. 
This  was  held  not  to  be  within  the  Statute  of  7  Edward  I,  the 
words  of  that  enactment  applying  only  to  the  case  of  acquisition 
of  lands  by  gift  or  other  alienation,  and  not  to  recovery  by  pro- 
cess of  law.  To  stop  this  practice  it  was  enacted  by  the  Statute 
of  Westminster  II  that  in  such  a  case  a  jury  should  determine 
whether  the  claimant  had  right  over  the  land  demanded  or  not. 
If  not,  the  land  claimed  was  to  be  forfeited  to  the  lord  of  the 
fee,  and  the  same  penalty  was  attached  to  the  attempt  of  a 
tenant  to  protect  himself  against  his  lord  by  setting  up  crosses 
in  his  land  and  so  availing  himself  of  the  privileges  of  the  Tem- 
plars and  Hospitallers".  The  restriction  as  to  holding  lands  in 
mortmain  might  at  all  times  have  been  dispensed  with  by  licence 
from  the  Crown  and  the  mesne  loi'ds  if  any.  In  later  times, 
when  the  power  of  the  Crown  to  dispense  with  the  provisions  of 
statutes  had  become  an  important  constitutional  question,  the 
x'\(A\i  of  the  Crown  to  grant  licences  to  alien  or  take  lands  in 
mortmain  was  made  to  rest  on  the  Statute  7  and  8  Will.  III.  c.  37; 
and  by  the  same  Statute  all  necessity  for  the  consent  of  the 
mesne  lords  was  removed.  Several  exceptions  have  been  intro- 
duced in  favour  of  particular  corporations  or  classes  of  cor- 
porations by  Act  of  Parliament,  as  for  instance  the  Universities 
and  Colleges  of  Oxford  and  Cambridge,  limited  companies,  and 
many  others.  When  however  no  licence  has  been  obtained  from 
the  Crown  or  been  conferred  by  Act  of  Parliament,  the  old  rule 
of  law  still  prevails, 

^  Technically  called  suffering  a  '  recovery.' 
''13  Edward  I,  c.  33. 


1 52  Legislation  of  Edward  I.  [chap.  iv. 


Statutum  de  Vmis  Religiosis,  7  Edward  I.  Stat.  2.  c.  13. 

Rex  Justitiariis  suis  de  Banco\  salutem.  Cum  dudum  pro- 
visum  fuisset  quod  viri  religiosi  feoda  aliquorum  non  ingi-ede- 
rentur  sine  licentia  et  voluntate  capitalium  dominorum  de  quibus 
feoda  ilia  immediate  teuentur ;  et  viri  religiosi  postmodura 
nihilominiis  tam  feoda  sua  propria  quam  aliorum  hactenus  in- 
gressi  sint,  ea  sibi  appropriando  et  emendo  et  aliquando  ex  dono 
aliorum  recipiendo,  per  quod  servitia,  quae  ex  hujusmodi  feodis 
debentur,  et  quae  ad  defensionem  regni  ab  initio  provisa  fuerunt, 
indebite  subtraluintur,  et  domini  capitales  escaetas  suas  inde 
amittunt ;  nos  super  hoc  pro  utilitate  regni  congruum  remedium 
provideri  volentes,  de  consilio  praelatorum,  comitum  et  aliorum 
fidelium  regni  nostri  de  consilio  nosti'o  existentium,  providimus, 
statuimus,  et  ordinavimus,  quod  nvdlus  religiosus  aut  alius  qui- 
cunque  terras  aut  tenementa  aliqua  emere  vel  vendere,  aut  sub 
colore  donationis  aut  termini  vel  alterius  tituli  cujuscunque,  ab 
aliquo  recipere,  aut  alio  quovis  modo,  arte  vel  ingenio,  sibi'  ap- 
propriare  praesumat,  sub  forisfactura  eorundem,  per  quod  ad 
manum  mortuam  terrae  et  tenementa  hujusmodi  deveniant 
quoquo  modo.  Providimus  etiam  quod  si  quis  religiosus  aut 
alius,  contra  praesens  statutum,  aliquo  modo,  arte  vel  ingenio, 
venire  pi'aesumpserit,  liceat  nobis,  et  aliis  immediatis  capitalibus 
domiuis  feodi  taliter  alienati,  illud  infra  annum  a  tempore 
alienationis  hujusmodi  ingredi  et  tenere  in  feodo  et  haereditate. 
Et  si  capitalis  dominus  immediatus  negligens  fuerit,  et  feodum 
hujusmodi  ingredi  noluerit  infra  annum,  tunc  liceat  proximo 
capitali  domino  mediate  feodi  illius,  infra  dimidium  annum 
sequentem,  feodum  illud  ingredi  et  tenere,  sicut  praedictum 
est  '^  ;  et  sic  quilibet  dominus  mediatus  faciat,  si  pi-opinquior 
dominus  in  ingrediendo  hujusmodi  feodum  negligens  fuerit,  ut 
praedictum  est.  Et  si  omnes  hujusmodi  capitales  domini  hujus- 
modi feodi,  qui  pleuae  fuerint  aetatis,   et  infra  quatuor  maria, 


^  This  Statute  is  in  tlie  form  of  a  writ  or  ordinance  addressed  to  the 
Justices  of  the  King's  Bench. 

*  The  form  of  the  writ  by  which  this  right  would  be  asserted  in  the 
case  of  a  sale  by  a  religious  corporation  is  given  in  Fleta,  lib.  iii.  cap.  5, 
§  9 :  '  Praecipe  A  quod  reddat  B  tale  tenementum  quod  tali  domui 
fuit  collatum  per  praedictum  B  vel  antecessores  suos,  quod  ad  praedictum 
B  reverti  debet  per  alienationem  quam  talis  Abbas  fecit  praedicto  A  de 
praedicto  tenemento  contra  formam  collationis  praedictae  ut  dicit.' 


§  3.]  Be  Bonis  Conditionalihis.  153 

et  extra  prisonam,  per  luium  annum  negligentes  vel  remissi 
fuerint  in  hac  parte,  nos  statim  post  annum  completum  a  tem- 
pore quo  hujusmodi  emptioues,  donationes,  aut  alias  appropria- 
tiones  fieri  contigerit,  terras  et  tenementa  Imjusmodi  capiemus 
in  manum  nostram,  et  alios  inde  feofFabimus  per  certa  sers'itia 
nobis  inde  ad  defensionem  regni  nostri  facienda  ;  salvis  capitali- 
bus  dominis  feodorum  illorum  wardis,  escaetis,  et  aliis  ad  ipsos 
pertinentibiis,  ac  servitiis  inde  debitis  et  consuetis. 

Et  ideo  vobis  mandamus  quod  statutum  praedictum  coram 
vobis  legi  et  de  cetei'O  fir  miter  teneri  et  observari  faciatis.  T.  R. 
apud  Westmonasterium  xv^  die  Novembris  anno  etc.  septimo. 

Statute  of  Westminster  II,  13  Edward  I.  c.  32. 

Cum  viri  religiosi  et  aliae  personae  ecclesiasticae  implacitent 
aliquem,  et  implacitatus  fecerit  defaltam,  ob  quam  tenementum 
amittere  debeat,  quia  Justitiarii  hucusque  timuerunt  quod,  si  im- 
placitatus fecerit  defaltam  per  coUusionem,  ut  cum  petens  occa- 
sione  Statuti  per  titulum  doni  aut  alterius  alienationis  seisinam 
de  tenemento  consequi  non  posset,  per  illam  defaltam  conseque- 
retur,  et  fieret  fraus  Statuto  ;  ordinatum  est  per  Dominum  Eegem 
et  concessum  quod  in  hoc  casu,  postquam  defalta  facta  fuerit,  in- 
quiratur  per  patriam  utrum  petens  habeat  jus  in  sua  petitione 
aut  non.  Et  si  compertum  fuerit  quod  petens  jus  habet  in  sua 
petitione,  procedatur  ad  judicium  pro  petenti,  et  recuperet  seisi- 
nam suam.  Et  si  jus  non  habuerit  incurratur  tenementum  proximo 
domino  feodi  si  illud  petat  infra  annum  a  tempore  inquisitionis 
captae.  {The  remaining  provisions  of  the  chapter  are  similar 
to  tlwse  of  tlie  Statute  7  Edward  I.) 

§  3.  Estates  Tail. 

With  the  reign  of  Edward  I  we  arrive  at  the  period  when  the 
influence  of  the  lords  of  manors  {domini  capitales)  upon  legisla- 
tion was  most  strongly  felt.  The  Statute  of  Westminster  II 
consists  of  fifty  chapters  dealing  with  various  branches  of  the 
law ;  the  first  of  them  is  known  as  the  Statute  De  Bonis  Con- 
ditionalihus.  The  object  of  this  enactment  was,  as  stated  in 
its  text,  to  protect  inheritances,  and  to  lessen  the  danger  of  the 
lord's  right  of  escheat  being  defeated  or  indefinitely  postponed 
by  the  alienation  of  the  tenant. 


154  Legislation  of  Edtvard  I.  [chap,  iv. 

The  technical  expression  '  conditional  gift '  has  been  already 
explained  in  commenting  on  the  passage  of  Bracton  given  above  ^ 
It  has  been  already  seen  that  in  Bracton's  time  an  estate  given 
to  a  man  and  the  heirs  of  his  body  was  held  to  be  an  estate  of 
inheritance  conditional  on  the  heir  being  born  ;  until  this  event 
happened  the  interest  was  in  effect  merely  an  estate  for  life.  It 
was,  strictly  speaking,  an  estate  descendible  to  the  class  of 
heirs  mentioned  in  the  gift,  if  such  there  should  be.  If 
therefore  a  donee,  holding  to  himself  and  the  heirs  of  his  body, 
made  an  alienation  of  his  land,  his  heirs,  Bracton  tells  us,  would 
be  bound  to  warranty,  that  is,  to  uphold  the  gift,  inasmuch  as 
they  can  only  claim  by  descent  from  their  ancestor  and  take 
nothing  by  the  original  gift.  These  estates  therefore,  upon  the 
happening  of  the  condition,  differed  from  ordinary  estates  in  fee 
simple  only  in  the  restricted  character  of  their  devolution  to  the 
class  of  heirs  named  in  the  gift.  So  soon  as  the  condition  was 
performed  by  the  birth  of  issue  the  tenant  could  alienate  and 
convey  an  estate  in  fee  simple.  So  if  the  donee  of  such  an  estate 
committed  treason,  the  fee  simple  would,  after  bii-th  of  issue,  be 
forfeited.  This  would  not  have  been  the  case  if  the  descent 
had  been  secured  by  virtue  of  the  form  of  the  gift.  The 
power  of  alienating  the  whole  would  as  a  matter  of  course 
involve  the  power  of  alienating  particular  rights  over  the  land, 
such  as  granting  a  rent  payable  out  of  it,  or  charging  it  with 
debts  so  as  to  bind  successors  in  title.  If  however  the  land  was 
not  alienated,  it  would  descend  not  according  to  the  ordinary 
rules  affecting  inheritances,  but  according  to  the  mode  expressed 
in  the  gift.  It  can  hardly  be  doubted  that  this  strained  construc- 
tion was  put  upon  such  gifts  in  order  to  favour  the  practice  of 
alienation,  which  was  dear  to  the  common  lawyers  and  to  the 
great  mass  of  landowners,  though  abhorrent  to  the  domini 
capitales. 

It  was  to  restrain  this  practice  of  alienation,  and  so  at  once  to 
prevent  the  lord  losing  the  benefit  of  escheat  upon  failure  of 

^  See  Chapter  III,  §  14. 


§  3-]  -^^  Don'is  ConJitionalibus.  155 

the  descendants  of  his  feoffee,  and  to    protect  the  interests  of 
the  heir,  that  the  Statute  de  Bonis  Conditionallbus  was  passed. 

The  effect  of  this  Statute  was  to  create  a  new  species  of  estates 
of  inheritance,  which,  except  under  certain  special  circumstances, 
could  not  be  alienated  so  as  to  defeat  the  expectant  interest  of 
the    heir,    or   postpone   the    reversion    of   the    lord.      It    was 
considered  by  the  tribunals  that  the  provision  that  the  will  of 
the  donor  as  expressed  in  the  charter   should   for   the   future 
be    observed,   bore    the    following    interpretation  : — \Vherever 
lands  were  granted  by  words  which  before  the  Statute  would 
have  created  a    conditional  gift  of  one  of  the   kinds    specified 
in  the  Statute,  such  a  gift  would  now  pass  an  estate  of  less 
extent  than  a  fee  simple.     Thus,  suppose  A,  tenant  in  fee  simple, 
made  a  grant    to   B  and    the  heii'S    male  of  his   body.     This 
limitation,  Avhich  before  the  Statute  Avould  have  been  a  fee  simple 
conditional  on  £  having  a  son  born,  was  now  held  to  convey 
a   special  kind  of  estate  of  inheritance,  namely#in  estate  de- 
scendible   only  to  heirs  male.     This  was  considered    to   be  a 
smaller  estate  than  a  fee  simple  which  was  capable  of  descending 
to  heirs  general,  i.  e.  collateral  as  well  as  lineal.     Tliis  secondary 
species  of  fee  has  ever  since  this  Statute  been  designated  an 
estate  tail,feudum  talliatum^,  being  a  portion  of  an  estate  taiUe 
— cut  off — from  the  fee.  Hence  it  came  to  be  established  that  when 
A,  tenant  in  fee  simple,  had  made  the  grant  above  mentioned  he 
had  not  granted  away  all  that  he  had  to  grant,  some  interest 
or  estate  was  left  in  him  still,  the  fee  simple  in  fact  was  not 
gone  ;  but  inasmuch  as  the  right  of  present  enjoyment  had  been 
parted  with  for  an  estate  which  would  last  as  long  as  B  and  his 
male  line  continued,  the  fee  simple  was  what  was  called  an  estate 
in  reversion,  as  opposed  to  one  in  possession.     B's  estate  was 
called  an  estate  in  fee  tail,  an  estate  cut  off  from  the  larger 
estate ;   and  in  technical  language  the  effect  of  the  above  grant 
would  be,  that  B  would  have  an  estate  in  fee  tail  in  possession. 


^  The  expression  is  used  in  tlie  Statute  of  Westminster  II  itself,  13 
Edward  I,  c.  46. 


1^6  Legislation  of  Edward  I.  [chap.  iv. 

A   would  have  an  estate  in  fee  simple  in   reversion  expectant 
upon  the  determination  of  the  estate  tail  \     The  difference  be- 
tween an  estate  in  reversion  and  a  mere  possibility  should  be 
noticed.     After  the  Statute,  and  the  judicial  interpretation  of  it 
■  above  explained,  A  would  have  an  estate  or  definite    interest 
known  to  the  law,  which  he  could  if  he  pleased  convey  by  the 
proper  mode  and  vest  in  another  person.     Before  the  Statute  he 
would  merely  have  had  the  possibihty  or  chance  of  the  fee  simple 
escheating  to  him  on  failure  of  B's  male  issue ;  and  this  is  not 
a  present  disposable  right  known  to  the  law,  but  is  merely  a 
possibility  of  obtaining  such  a  right  I     In  consequence  of  the 
recoo-nition  of  this  new  estate  or  interest  in  lands — the  estate 
tail — it  became  possible  to  create  interests  in  lands  of  a  much 
more  complicated  character  than  before.     When  a  person  had 
granted  away  the  fee  simple  he  had  disposed  of  all  that  he  had  to 
grant,  and  could  make  no  further  valid  disposition  of  his  pro- 
perty.    But  H|^w  that  an  interest  was  recognised  intermediate 
between  the  estate  for  life  and  the  estate  in  fee  simple,  it  became 
possible  to  grant  lands  as  follows — to  A  for  life,  and  after  the 
expiration  of  that  interest  (or,  more  shortly,  remainder)  to  B 
and  the  heirs  of  his  body,  remainder  to  C  and  his  heirs.     Here 
the  ultimate  gift  to  G,  though  passing  to  him  at  once  an  estate, 
would  be  merely  an  estate  in  expectancy,  that  is  the  enjoyment 
of  it  would  be  postponed,  not  only  till  ^'5  death,  but  also  till 
after  the  failure  of  Bs  lineal  descendants.     We  shall  see  how  the 
great  restriction  imposed  on  alienation  by  this  Statute  was  broken 
in  upon  by  the  action  of  the  tribunals.    The  further  history  of 
estates  tail  is  reserved  for  the  next  chapter^. 


^  This  conclusion  seems  not  to  have  been  reached  at  once.  In  a  note  to 
a  case  in  31  Edward  I  (Year  Book,  p.  384)  it  is  said  that  'in  a  gift  in 
frank -marriage  the  reversion  is  always  saved  and  supposed,  but  in  a  gift  in 
tail  the  reversion  is  not  saved  if  the  reversion  be  not  expressly  saved  in  the 
charter.'  No  doubt  it  was  usual  in  charters  to  express  that  the  land  on 
failure  of  the  issue  of  the  donee  should  revert  to  the  donor  and  his  heirs. 

2  An  escheat  is  however  sometimes  improperly  called  a  reversion. 

3  See  Chap.  V,  §  2. 


§  o  1  De  Bonis  CondU'ionalibus.  157 


Statute  of  Westminster  II,   13  Edward  I,  c.  i. 

In  primis,  de  tenementls^  quae  multotiens  dantur  sub  conditione, 
videlicet,  cum  aliquis  dat  terram  suam  alicui  viro  et  ejus  uxori 
et  haeredibus  de  ipsis  vii'o  et  muliere  procreatis  ^  adjecta  condi- 
tione expressa  tali,  quod  si  hujusmodi  vir  et  mulier  sine  haerede 
de  ipsis  viro  et  muliere  procreate  obiissent,  terra  sic  data  ad 
donatorem  vel  ad  ejus  baoredem  revertatur  ;  in  casu  etiani  cum 
quis  dat  tenementum  alicui  in  liberum  maritagium  quod  donum 
habet  conditionem  annexam,  licet  non  exprimatur  in  carta 
doni,  quae  talis  est,  quod  si  vir  et  mulier  sine  baerede  de 
ipsis  viro  et  muliere  procreate  obierint,  tenementum  sic  datum 
ad  donatorem  vel  ad  ejus  haeredem  revertatur ;  in  casu  etiam 
cum  quis  dat  tenementum  alicui  et  baeredibus  de  corpore  suo 
exeuntibus  ;  durum  videbatur,  et  adbuc  videtur  hujusmodi  dona- 
toribus  et  baeredibus  donatorum  quod  voluntas  ipsorum  in  donis 
suis  expressa  non  fuerit  prius  nee  adhuc  est  observata.  In  om- 
nibus enim  praedictis  casibus  post  prolem  suscitatam  et  exeun- 
tem  ab  ipsis  quibus  tenementum  sic  fuit  datum  conditionaliter, 
bucusque  babuerunt  bujusmodi  feoffati  potestatem  alienandi 
tenementum  sic  datum,  et  exbaeredandi  de  tenemento  exitum 
ipsorum,  contra  voluntatem  donatorum  et  formam  de  dono  ex- 
pressam  :  et  praeterea  cum  deficiente  exitu  de  bujusmodi  feoffatis, 
tenementum  sic  datum  ad  donatorem  vel  ad  ejus  haeredem 
reverti  debuit  per  formam  in  carta  de  dono  expressam,  licet 

^  'This  is  the  only  word  which  the  said  Statute  of  W.  2,  that 
created  estate  tail,  useth ;  and  it  includeth,  not  only  all  corporate  inherit- 
ances which  are  or  may  be  holden,  but  also  all  inheritances  issuing  out  of 
any  of  those  inheritances,  or  concerning  or  annexed  to  or  exercisable  within 
"the  same,  though  they  he  not  in  tenure,  therefore  all  these  without  ques- 
tion may  be  entailed.  As  rents,  estovers,  commons  or  other  profits  whatso- 
ever granted  out  of  land,  or  uses,  offices,  dignities  which  concern  lands  or 
certain  places  may  be  entailed  within  the  said  statute  because  these  savour 
of  the  realty.  But  if  the  grant  be  of  an  inheritance  merely  personal,  or  to 
be  exercised  about  chattels,  and  is  not  issuing  out  of  land,  nor  concerning 
any  land  or  some  certain  place,  such  inheritances  cannot  be  intailed, 
because  they  savour  nothing  of  the  realty.'  Coke  upon  Littleton,  19  b. 
See  instances,  ibid. 

^  To  bring  the  gift  within  the  Statute  to  the  words  of  inheritance  must 
be  added  words  '  of  procreation.'  It  must  be  expressed  that  the  heirs  are 
to  be  the  actual  issue  of  the  donee  or  donees. 


158  Lenislation  of  Edward  I.  [chap.  iv. 

exitus,  si  quis  fuerit,  obisset,  per  factum  et  feoffamentum  ip- 
sorum,  qviibus  tenementum  sic  fuit  datum  sub  conditione,  exclusi 
fuerunt  hucusque  de  reversione  eorundem  tenemeutorum,  quod 
manifeste  fuit  contra  formam  doni  sui :  propter  quod  dominus 
Rex,  perpendens  quod  necessarium  et  utile  est  in  praedictis  casi- 
bus  apponere  remedium,statuit,  quod  voluntas  donatoris  secundum 
formam  in  carta  ^  doni  sui  manifeste  expressam  de  caetero  obser- 
vetur,  ita  quod  non  liabeant  illi,  quibus  tenementum  sic  fuit 
datum  sub  conditioned,  potestatem  alienandi  tenementum  sic 
datum,  quo  minus  ad  exitum  illorum  quibus  tenementum  sic 
fuerit  datum  remaneat  post  eorum  obitum,  vel  ad  donatorem, 
vel  ad  ejus  haeredem,  si  exitus  deficiat  per  hoc  quod  nullus  sit 
exitus  omuino,  vel  si  aliquis  exitus  fuerit,  per  mortem  deficiet, 
haerede  hujusmodi  exitus  deficiente.  Nee  habeat  de  caetero 
secundus  vir  hujusmodi  mulieris  aliquid  in  tenemento  sic  date 
per  conditionem  post  mortem  uxoris  ejus  per  legem  Angliae^, 
nee  exitus  de  secundo  viro  et  muliere  successionem  haeredita- 
riam,  sed  statim  post  mortem  viri  et  mulieris  quibus  tenementum 
sic  fuit  datum  post  eorum  obitum  vel  ad  eorum  exitum,  vel  ad 
donatorem,  vel  ad  ejus  haeredem,  ut  praedictuni  est,  revertatur. 
Et  quia  in  novo  casu  novum  remedium  est  apponendum,  fiat  im- 

*  '  Note,  that  if  one  demand,  and  by  Formedon,  either  in  the  "reverter  " 
or  in  the  "  descender,"  it  is  not  necessary  that  he  have  any  evidence  of  the 
form,  except  matter  in  pais  *  (facts  on  which  the  jury  may  rest  their 
verdict),'  for  altliough  he  have  not  any  charter,  he  shall  be  received  to 
aver  by  good  matter  in  pais  that  the  thing  was  thus  given.'  Year  Book, 
20  Edward  I,  p.  1 30.     As  to  the  writs  of  formedon  see  below. 

^  The  Courts  seem  to  have  held  in  the  beginning  of  the  reign  of 
Edward  II  that  the  word  '  heirs  '  was  left  oat  of  the  Statute  by  mistake  of 
the  clerk,  and  that  the  Statute  was  binding  not  only  on  the  donee  but 
on  his  heirs  in  infinitum.  See  Reeves,  ii.  200.  Thus  lands  granted  after  the 
passing  of  this  Statute  to  a  man  and  the  heirs  of  his  body  could  never,  except 
as  explained  in  the  next  chapter,  be  alienated  so  as  to  defeat  the  interest  of 
the  heir  by  descent,  or  the  reversion  of  the  donor.  This  however  was 
the  only  restriction  upon  alienation  ;  and  therefore  an  alienation  in 
fee  simple  by  tenant  in  tail  conveyed  the  estate  to  the  donee,  subject 
to  the  rights  of  the  reversioner  or  remainder-man  upon  failure  of  the  issue 
in  tail,  and  to  that  of  the  issue,  to  avoid  the  gift  by  bringing  the 
action  called  formedon  in  the  'reverter,'  'remainder,'  or  'descender.'  A  gift 
of  the  fee  by  tenant  in  tail  without  barring  the  entail  conveys  what  is 
called  '  a  base  fee.'     See  Stephen,  vol.  i.  p.  249  (5th  ed.). 

^  As  to  tenancy  per  legem  Angliae,  or  by  the  curtesy,  see  above, 
Chap.  Ill,  §  15. 


§  3-1  -^^'  Douis  Conditionalibus.  159 

petranti  tale  breve  ^ :  '  Praecipe  A  quod  juste,  etc.  reddat  B  tale 
manerium  cum  pertinentiis,  quod  G  dedit  tali  viro  et  tali 
mulieri  et  haeredibus  de  ipsis  viro  et  muliere  exeuntibus  : '  vel 
'Quod  C dedit  tali  viro  in  liberura  maritagium  cum  tali  muliere, 
et  quod  post  mortem  praedictorum  viri  et  raulieris  j^raedicto  B 
filio  praedictorum  viri  et  mulieris  descendere  debet  per  formam 
donationis  praedictae  ut  dicit  : '  vel  '  Quod  C  dedit  tali  et 
haeredibus  de  corpore  suo  exeuntibus,  et  quod  post  mortem 
ipsius  talis  praedicto  B  filio  praedicti  talis  descendere  debet  per 
formam  donationis,  etc'  Breve  per  quod  donator  habet  recupe- 
rare  suum,  deficiente  exitu^,  satis  est  in  usu  in  Cancellaria  ^.  Et 
sciendum,  quod  hoc  statutum  quoad  alienationem  tenementi 
contra  formam  doni  imposterum  faciendam  locum  habet,  et  ad 
dona  prius  facta  non  extenditur.  Et  si  finis  super  hujusmodi 
tenemento  imposterum  levetur,  ipso  jure  sit  uullus*.  Nee 
habeant  haeredes  hujusmodi,  aut  illi  ad  quos  spectat  reversio, 
licet  plenae  sint  aetatis  in  Anglia  et  extra  jirisonam,  necesse 
apponere  clameum  suum^. 

*  This  was  called  the  writ  of  '  formedon  (Jorma  doni)  in  the  descender,' 
and  was  the  appropriate  remedy  when  the  heir  of  tenant  in  tail,  upon 
whom  the  estate  tail  had  descended,  sought  to  recover  against  the  alienee 
of  a  preceding  tenant  in  tail.  It  was  in  the  nature  of  a  writ  of  right,  dif- 
fering from  it  in  being  applicable  to  the  recovery  of  an  estate  tail,  the  writ 
of  right  being  for  the  recovery  of  the  fee. 

^  This  writ  was  called  the  writ  of  formedon  in  the  reverter.  No  mention 
is  made  of  the  writ  of  formedon  in  the  remainder,  by  which  the  remainder- 
man could  recover ;  e.  g.  where  lands  were  granted  to  A  in  tail  remainder  to 
B  in  fee,  A  aliens  for  an  estate  in  fee  simple  to  C  and  dies  without  issue. 
B  recovers  against  C  by  the  form  of  the  original  gift  creating  the  estate 
tail.  According  to  Reeves  (ii.  p.  201)  this  writ  first  appears  early  in  the 
reign  of  Edward  II.  A  specimen  however  of  a  writ  of  formedon  in  the 
remainder,  the  remainder  being  expectant  upon  a  joint  estate  for  lives  (not 
upon  an  estate  tail),  is  to  be  found  in  the  Year  Book,  30  Edward  I,  p.  180. 

^  The  Chancery  was  the  '  officina  brevium,'  the  office  from  which  the 
writs  were  issued  under  the  Great  Seal.  The  duties  of  the  Chancellor  and 
his  clerks  in  this  respect  were  simply  ministerial,  they  had  no  power  to 
give  validity  to  a  new  form  of  writ,  except  so  far  as  that  power  was  con- 
ferred upon  them  by  the  24th  chapter  of  the  present  Statute.  See  below, 
Chap.  VI,  and  Elackstone,  iii.  p.  49. 

*  The  effect  of  a  fine  in  barring  estates  tail,  that  is,  enabling  the  tenant 
in  tail  to  alienate  for  an  estate  in  fee  simple,  was  not  permitted  till  the 
Statute  32  Hen.  VIII,  c.  36.  (Blackstone,  ii.  355.) 

*  Except  as  regards  the  power  of  tenant  in  tail  to  alienate  the  inheritance. 


i6o  Legislatio7i  of  Edward  I.  [chap.  iv. 


§  4.  Rights  of  Common  Appurtenant. 

It  has  been  already  observed  ^  that  the  Statute  of  Merton  had 
no  application  where  persons  outside  the  manor  and  not  tenants 
of  the  lord  enjoyed,  as  appurtenant  to  their  freehold  tenements, 
rights  of  common  of  pasture  over  the  wastes  of  the  manor.  The 
object  of  the  following  enactment  was  to  extend  the  principles  of 
the  Statute  of  Merton  to  commoners  having  such  rights  of  com- 
mon. These  rights  of  common  are  called  rights  of  common 
ajypurtenant,  as  opposed  to  the  rights  of  common  of  pastures  en- 
joyed by  the  freehold  tenants  of  the  manor,  which  are  rights  of 
common  appendant.  It  is  worthy  of  observation  that  the  rights 
of  common  here  contemplated  must  have  rested  on  ancient  custom  ; 
it  could  not  have  been  supposed  by  the  framers  of  this  Statute 
that  the  right  had  at  some  former  date  been  gi-anted  by  the 
lord,  according  to  the  theory  of  later  lawyers  ^ 

Statute  of  Westminster  II,  13  Edward  I,  c.  46. 

Cum  in  statuto  edito  apud  Merton,  concessum  fuerit,  quod 
domini  boscorum,  vastorum,  pasturarum,  appruare  ^  se  possent 
de  boscis,  vastis  et  pasturis  illis,  non  obstante  contradictione 
tenentium  suorum,  dummodo  tenentes  ipsi  haberent  sufficientem 
pasturam  ad  tenementa  sua,  cum  libero  ingressu  et  egressu  ad 
eandem,  et  pro  eo  quod  nulla  fiebat  mentio  inter  vicinum  et  vici- 
num,  multi  domini  boscorum,  vastorum,  et  pasturarum  hucus- 
que  impediti  extiterint  per  contradictionem  vicinorum  suffici- 
entem pasturam  habentium ;  et  quia  forinseci  *  tenentes  non 
habent  majus  jus  communicandi  in  bosco,  vasto,  aut  pastura  ali- 
cujus  domini,  quam  proprii  tenentes  ipsius  domini  ;  statutum 
est   de   caetero,  quod   Statutum   apud  Merton   provisum  inter 

or  to  lose  it  by  forfeiture  or  other  involuntary  alienation,  an  estate  tail 
resembles  an  estate  in  fee  simple.  Tenant  in  tail  is  at  liberty  to  use  the 
land  as  he  pleases,  unlike  tenant  for  life  he  is  not  liable  for  waste,  he  can 
cut  timber,  open  mines,  and  generally  deal  with  the  land  at  his  pleasure. 
So  the  husband  of  tenant  in  tail  is  entitled  to  an  estate  by  the  curtesy,  and 
the  widow  of  tenant  in  tail  to  dower. 

1  Chap.  Ill,  §  17  (2).  '^    See  above,  p.  129. 

^  i.  e.  appropriare. 

*  Freeholders  not  tenants  of  the  manor. 


§4.]  RigJds  of  Common  Appurtenant.  i6r 

dominum  et  tenentes  suos  locum  habeat  de  caetero  inter  dominos 
boscorum,  vastorum  et  pasturai'um,  et  vicinos,  ita  quod  domini 
hujusmodi  vastorum,  boscorum,  et  pasturarum,  salva  sufficicnte 
pastura  hominibus  suis  et  vicinis,  appruare  sibi  possiut  de 
residuo.  Et  hoc  observetur  de  his  qui  clamant  pasturam  tau- 
quam  pertinentem  ad  tenementa  sua.  Sed  si  quis  clamat  com- 
munam  pasturae  per  speciale  feoffamentum  vel  concessioncm 
ad  certum  numerum  averiorum,  vel  alio  modo  quam  de  jure  com- 
muni  habere  deberet,  cum  conventio  legi  deroget,  habeat  suum 
recuperarCj  quale  habere  deberet  per  formam  concessionis  sibi 
factae.  Occasione  molendiui  ventritici,  bercariae,  vaccariae, 
augmentationis  curiae  necessariae  aut  curtilagii,  de  caetero  non 
gravetur  quis  per  assisam  novae  disseisinae  de  communa  pas- 
turae. Et  cum  contiugat  aliquando,  quod  aliquis  jus  habens 
appruare  se,  fossatum  aut  sepera  levaverit,  et  aliqui  noctanter  vel 
alio  tali  tempore  quo  non  ci'edant  factum  suum  sciri,  fossatum 
vel  sepem  prostraverint,  nee  sciri  poterit  per  vei-edictum  assisae 
aut  juratae  qui  fossatum  aut  sepem  prostraverint,  nee  velint 
homines  de  villatis  vicinis  indictare  de  hujusmodi  facto  culpa- 
biles,  distringantur  propinquae  villatae  circum  adjacentes,  levare 
fossatum  aut  sepem  ad  custum  propi'ium,  et  dampna  restituere. 
Et  cum  aliquis  jus  non  habens  communicandi  usurpet  communam 
tempore  quo  haeredes  extiterint  infra  aetatem,  vel  uxores  sub 
potestate  virorum  sviorum  existentes,  vel  pastura  sit  in  manu 
tenentium  in  dotem,  per  legem  Angliae,  vel  aliter  ad  ter- 
minum  vitae,  vel  annorum,  vel  per  feodum  talliatum  \  et  pas- 
tura ilia  diu  usi  fuerint,  multi  sunt  in  opinione  quod  hujusmodi 
pasturae  debent  dici  pertinere  ad  liberum  tenementum,  et  quod 
hujusmodi  possessori  competere  debet  actio  per  breve  novae  dis- 
seisinae, si  hujusmodi  pastura  deforcietur ;  sed  de  caetero 
tenendum  est  quod  habentes  hujusmodi  ingressum  a  tempore 
quo  currit  breve  mortis  antecessoris  ^  si  antea  communam  non 
habuerunt,  non  habeant  recuperare  per  breve  novae  disseisinae 
si  fuerint  deforciati. 


'  This  is  the  earliest  instance  of  the  expression  '  estate  tail.'     See  above 

p.  i5.=;- 

^  That  is, '  a  coronatione  regis  Henrici  III.'  '  But  the  said  long  posses- 
sion is  great  evidence  and  strong  presumption  of  the  right  of  common,  and 
stabitur  praesumptioni  donee  probetur  in  contrarium.'  Coke,  ad  loc,  2nd 
Inst.  p.  477.  For  the  fiction  by  which  continued  enjoyment  was  held  to 
be  evidence  of  a  grant,  see  above,  p.  129. 

M 


l62  Legislation  of  Edicard  I.  [chap.  iv. 


§  5.  Alienation. 

The  history  of  the  law  of  alienation  has  already  been  touched 
upon  \  We  have  seen  that  in  the  Anglo-Saxon  time  there  was 
as  a  rule  perfect  freedom  of  alienation  in  the  case  of  bocland. 
There  does  not  appear  to  be  any  reason  to  suppose  that  this 
freedom  of  alienation,  so  far  as  it  was  effected  inter,  vivos, 
was  ever  materially  curtailed,  until  the  passing  of  the  Statute 
De  Donis,  except  by  the  article  of  Magna  Carta,  already 
given  ^,  and  the  establishment  of  the  right  of  the  Crown  to 
grant  licences  for  alienation  by  tenants  in  capite.  There  is  no 
trace  of  a  licence  of  alienation  being  required  for  the  alienation 
of  lands  held  of  a  mesne  lord.  We  gather  indeed  from  Bracton 
that  this  freedom  of  alienation  was  a  matter  which  was  contested 
by  the  great  lords  in  his  day.  In  Bracton's  view  ^  the  lord  could 
only  fairly  claim  his  service  and  homage.  He  must  not  push 
his  rights  further.  The  fact  that  it  might  be  more  advantageous 
to  him  to  prevent  a  change  of  tenants  was  not  sufficient  to  de- 
prive the  tenant  of  his  right  of  alienation.  Let  the  lord  'take 
that  Avhich  was  his  and  go  his  way  *.'  It  seems  that  at  the 
beginning  of  the  reign  of  Edward  I  the  barons  determined  on 
attempting,  where  they  could  not  prevent  alienation  altogether, 
at  all  events  to  diminish  the  loss  sustained  by  the  granting  out 
of  lands  by  their  tenants  to  be  held  of  themselves  by  subinfeu- 
dation. 

It  seems  that  before  the  passing  of  this  Statute,  where  A  held 
lands  in  fee  simple  of  B,  A  might  have  granted  to  C  the  whole 
of  those  lands  to  be  held  of  B ;  and  such  a  gi-ant  would  operate 
to  create  a  tenancy  between  C  and  B^.     This  relation,  however, 


>  See  Chap.  III.  §  13.  ^  See  Chap.  III.  §  7. 

^  ii.  c.  19.  s.  2.  fol.  46.     Above,  Chap.  III.  §  13.  p.  113. 
*  ToUat  quod  suum  fuerit  et  vadat.     Bracton,  fol.  45  ;  above,  p.  113. 
'  Coke's  2nd  Inst.  p.  65;   and  see  above,  p.  115. 


§  5-]  Quia  Emjotores.  163 

could  not  at  the  common  law  (that  is,  independently  of  the 
Statute  presently  to  be  mentioned)  have  been  effected  by  a 
grant  by  ^  to  C  oi  part  of  the  lands  held  by  ^.  At  common 
law,  a  feoffment  made  by  A  to  C  of  a  portion  of  his  lands  would 
in  every  case  have  created  anew  the  relation  of  lord  and  tenant, 
with  all  the  incidents  attaching  to  that  relation,  as  between  A 
and  C.  In  this  case  there  would  be  no  immediate  relation 
of  lord  and  tenant  between  the  chief  lord  and  C.  The  ad- 
vantageous rights  of  the  lord  over  the  land  would  con- 
sequently be  diminished.  The  land  thus  aliened  would  not 
escheat  to  the  chief  lord  on  the  failm-e  of  the  heirs  of  the 
alienee,  nor  would  the  lord  be  the  guardian  of  the  lands  or  of 
the  body  of  the  heir. 

To  preserve  these  rights  it  was  in  the  eighteenth  year  of 
Edward  I  enacted  that  every  alienation,  whether  of  the  whole 
or  of  a  part  of  the  land,  should  have  the  effect  of  substituting 
the  alienee  for  the  alienor  in  relation  to  the  chief  lord  ;  the 
alienee  simply  stepping  into  the  place  of  the  alienor,  and 
being  subject  to  all  the  duties  and  obligations  under  which  he 
held  the  land  of  his  lord.  The  pinmary  object  of  this  enact- 
ment was  to  prevent  the  loss  arising  to  the  lords  of  manors  from 
subinfeudation,  or  subdivision  of  the  tenements  held  of  them. 
Consequently,  whenever  at  the  present  day  a  freeholder  holds 
of  a  mesne  lord,  the  separation  of  the  freehold  from  the  domain 
must  have  occurred  at  a  date  anterior  to  the  eighteenth  year 
of  Edward  I.  From  this  time  forward  every  alienation  of  land 
in  fee  simple  presents  the  characteristics  of  a  complete  out 
and  out  transfer,  the  transferee  stepping  for  all  purposes  into  the 
place  of  the  transferor.  Gradually  by  successive  alienations  the 
tie  between  the  chief  lord  and  the  freeholder  becomes  weakened. 
In  socage  tenure,  when  no  rent  was  payable  and  no  value  at- 
tached to  the  service,  there  was  no  motive  for  keeping  up  the 
empty  ceremony  of  fealty,  and  thus  in  many  cases  the  relation  of 
lord  and  tenant  became  altogether  obliterated.  Finally,  Avhen 
all  the  valuable  incidents  attaching  to  knight-service  were 
abolished  and  the  tenure  itself  converted  into   socage   by  the 

M  2 


1 64  Legislation  of  Edward  I.  [chap.  iv. 

Statute  of  Charles  (12  Car.  II,  c.  24),  the  relation  between  the 
freeholder  and  his  lord  fell  into  abeyance,  and  the  freeholder 
became  for  all  practical  purposes  owner  of  the  soil.  Thus 
at  the  present  day,  in  the  great  majority  of  cases,  no  interme- 
diate lord  is  recognised  between  the  freeholder  and  the  crown, 
except  where  the  freehold  is  within  the  known  precincts  of  a 
manor,  and  the  relation  between  the  freeholder  and  the  lord 
of  the  manor  has  been  kept  up  by  the  recognition  of  mutual 
rights  and  duties,  such  as  payment  of  rent,  or  rendering  heriots 
or  other  dues  to  the  loi'd. 


Statute  of  Westminsteb  III,   18  Edward  I,  c.  i. 
'  Quia  JEmptores.' 

Quia  emptoees  terrarum  et  tenementorum  de  feodis  magnatum 
et  aliorum  in  praejudicium  eorundem  temporibus  retroactis 
multotiens  in  feodis  suis  sunt  ingi-essi,  quibus  libere  tenentes 
eorundem  magnatum  et  aliorum  terras  et  tenementa  sua  vendide- 
runt,  tenenda  in  feodo  sibi  et  heredibus  suis  de  feoffatoribus  suis 
et  non  de  capitalibus  dominis  feodorum,  per  quod  iidem  capitales 
domini  escaetas,  maritagia,  et  custodias  terrarum  et  tenemen- 
torum de  feodis  suis  existentium  saepius  amiserunt,  quod  quidem 
eisdem  magnatibus  et  aliis  dominis  quam  plurimum  durum  et 
difficile  videbatm*,  et  similiter  in  hoc  casu  exiieredatio  manifesta  ; 
Dominus  Rex  in  Parliamento  sue  apud  Westmonasteiuum  post 
Pascha  anno  regni  sui  decimo  octavo,  videlicet  in  quiudena 
Sancti  Johannis  Baptistae,  ad  instantiam  magnatum  regni  sui, 
concessit,  providit,  et  statuit,  quod  de  cetero  liceat  unicuique 
libero  homini  terram  suam  seu  tenementum  sive  partem  inde  pro 
voluntate  sua  vendere,  ita  tamen  quod  feoffatus  teneat  ter- 
ram illam  seu  tenementum  de  eodem  capitali  domino  ^  et  per 
eadem  servitia  et  consuetudines,  per  quae  feofFator  suus  ilia  prius 
tenuit. 

c.  ii.  Et  si  partem  aliquam  earundem  terrarum  seu  tenemen- 


*  That    is,   the    next    immediate    lord,    of  whom   the  feoffor   himself 
holds. 


§  5*]  Quia  Emptores.  165 

torum  alicui  vendiderit,  feoffatus  illam  teneat  immediate  de 
capitali  domino,  et  oneretur  statim  de  servicio  quantum  pertinet 
sive  pertinere  debet  eidem  domino  pi'o  particula  ilia,  secundum 
quantitatem  terrae  seu  tenement!  venditi ;  et  sic  in  hoc  casu 
decidat  capitali  domino  ipsa  pars  servicii  capienda  per  nianum 
feoffatoris,  ex  quo  feoffatus  debet  eidem  capitali  domino  juxta 
quantitatem  terrae  seu  tenement!  venditi  de  particula  ilia  servicii 
sic  debiti  esse  intendens  et  respondens. 

0.  iii.  Et  sciendum  est  quod  per  praedictas  venditiones  sive 
emptiones  ten^arum  seu  tenementorum,  seu  partis  alicujus  eorun- 
dem,  nullo  modo  possunt  terrae  seu  tenementa  ilia  in  parte  vel 
in  toto  ad  manuni  mortuam  devenire  arte  vel  ingenio  contra 
formam  statuti  super  hoc  dudum  editi^  Et  sciendum  quod 
istud  statutum  locum  tenet  de  terris  venditis  tenendis  in  feodo 
simjiliciter  tantum " ;  et  quod  se  extendit  ad  tempus  futm^um. 
Et  incipiet  locum  tenere  ad  festum  Sancti  Andreas  proximo 
futm'um. 

The  effect  of  the  Statute  of  Quia  Emptores  upon  the  form 
of  charters  of  feoffment  can  be  clearly  traced  by  comparing  the 
following  form  with  that  given  above  ^. 

Sciant  praesentes  et  futuri  quod  Ego  Johannes  Elys  de  Shel- 
done  dedi  concessi  et  hac  praesenti  carta  mea  coufirmavi  Domino 
Willielmo  de  Charneles  de  Bedeworth  totum  pratum  meum 
quod  habui  de  Willielmo  de  Burthate  cum  fossis  et  hayis  libertati- 
bus  et  cum  omnibus  suis  pertinenciis  et  emolumentis  quae  aliquo 
modo  seu  causa  de  dicto  prato  mihi  vel  haeredibus  meis  acci- 

aisse  potuissent 

Habendum  et  tenendum  praedictum  pratum  cum  omnibus  suis 
pertinenciis  praedictis  sibi  dicto  Willielmo  et  haeredibus  suis  et 
suis  assignatis,  de  capitalibus  dominis  feodi,  libere,  haereditarie, 


*  7  Edward  I,  De  Religiosis;  above,  Chap.  IV.  §  2. 

^  Hence,  if  a  tenant  in  fee  simple  makes  an  alienation  for  an  estate  tail, 
or  an  estate  for  life,  the  tenant  in  tail  or  the  tenant  for  life  holds  of  the 
alienor  in  respect  of  his  reversion  in  fee.  It  is  otherwise,  however,  if  the 
alienor  parts  with  his  whole  estate,  leaving  no  reversion  in  himself ;  as  for 
instance,  if  he  grants  an  estate  by  way  of  remainder  in  fee  expectant  on 
the  determination  of  the  estate  for  life,  or  in  tail.  (Coke's  2nd  Inst. 
p.  504.) 

'  Chapter  I.  Authorities,  2. 


1 66  Legislation  of  Edward  I.  ^ 

pacifice,  et  in  perpetuum  quiete,  reddendo  et  faciendo  eisdem 
servicia  eis  inde  debita  et  consueta  ^.  Ego  vero  dictus  Johannes 
et  haeredes  mei  et  mei  assignati  praedictum  pratum  cum  fossis 
et  hayis  et  cum  omnibus  suis  pertinentiis  prout  supradictum  est 
praedicto  Willielmo  et  haeredibus  suis  et  suis  assignatis  waranti- 
zabimus  acquietabimus  et  in  perpetuum  defendemus 

Hiis  testibus  etc. 

Datum  apud  Oldecotenhale  die  Sabbati  proxima  post  purifi- 
cationem  beatae  Mariae  Virginia,  anno  regni  Regis  Edwardi 
vicesimo  quarto. — Madox,  Formulare  Anglicanum,  No.  cccxxxiii. 

'  If  a  rent  be  reserved  to  the  grantor,  as  was  not  uncommon,  this  cannot 
operate  as  the  creation  of  a  rent  service,  for  that  would  be  contrary  to  the 
Statute.  If,  however,  the  grant  be  in  tail  or  for  life  a  rent  service  may  be 
created ;  for  the  Statute  is  no  bar  to  the  creation  of  a  tenure  as  between 
the  reversioner  in  fee  and  the  tenant  of  a  smaller  or  particular  freehold 
estate.  Where  a  rent  service  is  created,  the  lord  or  reversioner  has  always 
the  right  to  distrain  for  the  rent  in  arrear.  Where  on  a  grant  in  fee  simple 
a  rent  is  reserved  to  the  grantor,  this  is  not  a  rent  service  but  a  rent 
charge.  It  is  in  fact  equivalent  to  a  re-grant  from  the  donee  in  fee  simple 
of  a  charge  upon  the  lands.  In  order  to  give  the  person  entitled  to  the 
rent  the  right  to  distrain,  it  was  necessary,  before  the  statute  4  George  II, 
c.  28,  that  there  should  be  a  special  clause  in  the  deed  by  which  the  rent  is 
created  to  that  effect.  If  there  was  no  clause  of  distress  the  rent  was  called 
a  rent  seek  (reditus  siccus).  The  appropriate  remedy  for  the  recovery  of  a 
rent,  before  the  abolition  of  real  actions,  was  by  Assize  of  Novel  Dioseisin. 


CHAPTER    V. 

COMPLETION  OF  THE  COMMON  OR  EARLIER 

LAW. 

JjY  the  end  of  the  reign  of  Edward  I  the  main  outlines  of  the 
law  relating  to  land  are  complete.  There  is  no  statute  producing 
an  organic  change  in  the  law,  such  as  was  effected  by  the  statutes 
of  De  Bonis  and  Quia  Emptores,  till  the  reign  of  Henry  VIII. 
During  the  period  extending  from  the  reign  of  Edward  I  to  the 
reign  of  Henry  VIII,  the  changes  in  the  law  are  to  be  looked 
for  chiefly  in  the  action  of  the  regular  tribunals,  and  in  the 
growth  of  a  wholly  new  set  of  principles  affecting  land  created 
by  the  new  jurisdiction  of  the  Chancellor.  The  latter  will  be 
discussed  in  the  next  chapter.  The  present  will  be  confined  to 
an  examination  of  the  development  of  certain  particular  classes 
of  rights  during  the  period  above  mentioned. 

The  sources  of  our  knowledge  of  the  law  for  this  period  are 
(i)  the  official  reports  of  cases  decided  by  the  common  law  tri- 
bunals contained  in  the  Year  Books';  (2)  authoritative  text-^ 

'  The  reports  in  the  Year  Books  are  written  in  the  strange  jargon  called 
law-French.  Documents  such  as  records  of  proceedings  in  court,  charters, 
the  text  of  statutes  (most  commonly,  see  above,  p.  146),  were  in  Latin. 
French  was  formerly  the  oral  language  in  which  all  viva  voce  proceedings  were 
conducted.  By  36  Edward  III,  Stat.  i.  c.  15,  after  reciting  that  a  reason 
why  the  laws  were  so  ill  obeyed  was  that  they  were  '  pleaded,  showed,  and 
judged  in  the  French  tongue,  which  was  much  unknown  in  the  realm,  so 
that  people  which  do  implead  or  be  impleaded  in  the  king's  court  and  in 
the  courts  of  other  have  no  knowledge  nor  understanding  of  that  which  is 
said  for  them  or  against  them  by  their  Serjeants  or  other  pleadei-s,'  it  was 


1 68  Completion  of  the  Common  Law.        [chap.  v. 

books,  of  which  Littleton's  work  on  Tenures,  published  in  the 
reign  of  Edward  IV,  is  the  most  important.  The  principal 
classes  of  rights  in  relation  to  land  which  require  notice  as  at- 
taining fui'ther  development  during  this  period  are — leasehold 
interests ;  estates  tail ;  rights  of  future  enjoyment ;  estates  in 
joint  tenancy,  and  tenancy  in  common  ;  rights  of  creditors  over 
the  lands  of  their  debtors  ;  and  copyhold  estates. 


§  I.  Leasehold  Interests. 

The  early  histoiy  of  leasehold  interests  or  estates  for  years 
has  already  been  noticed,  and  reference  has  been  made  to  the 
change  effected  in  the  reign  of  Henry  III,  by  which  leasehold 
interests  were  erected  into  a  distinct  kind  of  estate  or  property 
in  land  ^.  This  interest  or  property  is  less  than  freehold,  it  is 
wanting  in  the  great  characteristic  of  fi-eehold — uncertainty  as 
to  the  period  at  which  the  rights  will  come  to  an  end.  It  is 
essential  to  a  leasehold,  or,  as  it  is  often  called,  a  chattel  interest 
in  land,  that  the  period  of  its  termination  should  be  fixed  from 
the  beginning,  or  at  least  be  capable  of  being  fixed. 

The  class  of  rights  under  consideration  present  characteristics 
wholly  different  to  freehold  interests  as  to  the  mode  in  which 
they  are  created,  the  kind  of  interest  which  may  be  given,  the 
mode  in  which  they  devolve  on  the  death  of  the  person  entitled, 
and  the  remedy  by  which  the  right  is  vindicated. 

The  proper  mode  of  granting  an  estate  for  years  at  common 
law  ^  is  by  words  of  demise  followed  by  the  entry  of  the  lessee. 

provided  that '  all  pleas  which  shall  be  pleaded  in  any  courts  whatsoever 
shall  be  pleaded,  showed,  defended,  answered,  debated,  and  judged  in  the 
English  tongue,  and  that  they  be  entered  and  inrolled  in  Latin.'  Reports 
of  proceedings  still  continued  to  be  in  French  till  the  reign  of  Elizabeth, 
and  the  practice  lingered  on  till  the  close  of  the  seventeenth  century.  It 
was  however  prohibited  by  an  Act  of  Parliament  passed  in  the  time  of  the 
Commonwealth,  auno  1650,  cap.  37. 

1  See  above,  Chap.  Ill,  §  16. 

2  In  this  chapter  the  expression  '  common  law '  is  applied  to  the  rules  of 


.^  I.]  Leasehold  Interests.  169 

The  appropriate  words  of  the  grant  are  demvd,  concessi,  et  ad 
firmam  tradidi — demise,  grant,  and  to  farm  let.  The  lessee  is 
sometimes  called  the  termor,  sometimes,  from  the  main  object 
of  the  transaction,  the  farmer. 

It  was  not  necessary  that  the  words  of  demise  should  be  iu 
writing  until  the  passing  of  the  Statute  of  Frauds  (29  Car.  II, 
c.  3),  which  rendered  writing  necessary  for  the  validity  of  all 
leases,  except  those  for  a  term  not  exceeding  three  years,  and 
fulfilling  certain  conditions  as  to  rent. 

In  order  to  complete  the  interest  of  the  lessee,  it  is,  at  common 
law,  necessary  that  the  words  of  demise  should  be  followed  by 
his  entry  on  the  lands.  The  words  of  demise,  spoken  or  written, 
confer  a  right  to  enter,  technically  called  an  interesse  termini, 
but  the  lessee  does  not  become  actually  tenant  in  possession 
until  he  has  made  entry  upon  the  land  demised. 

Leasehold  interests,  requiring  no  livei-y  of  seisin,  may  at  com- 
mon law  be  created  so  as  to  take  effect  in  possession  or  enjoy- 
ment at  a  future  time.  This  is  impossible  in  freehold  interests 
except  in  the  case  of  remainders  ^.  A  lease  to  commence  next 
Christmas  conveys  a  perfect  right  to  the  lessee  to  enter  at 
Christmas,  and  to  hold  for  the  specified  term. 

Again,  leasehold  interests  are  not  subject  to  the  rules  affecting 
the  devolution  of  freehold  interests.  Before  the  change  recorded 
by  Bracton  -,  the  only  parties  who  could  under  any  circumstances 
have  claimed  the  benefits  of  a  lease  on  the  death  of  the  lessee 
were  his  executors  or  administrators  ^  and  that  only  when  the 
lease  rested  on  an  express  covenant  by  deed.  Hence,  when 
leasehold  interests  became  rights  of  property  (cv  rights  avail- 
able not  only  against  the  lessor,  but  also  against  all  the  wox'ld), 

the  older  law,  which  have  in  some  cases  been  modified  or  supplemented 
by  subsequent  legislation,  to  be  afterwards  noticed. 

^  See  below,  §  3. 

*  See  above,  Chap.  Ill,  §  16. 

^  The  administrator  is  the  person  appointed,  formerly  by  the  Ecclesias- 
tical Court,  now  by  the  Court  of  Probate,  to  administer  and  distribute  the 
personal  property  of  the  intestate. 


I/O  Completion  of  the  Common  Law.         [chap.  v. 

it  was  natural  that  they  should  not  be  brought  under  the  rule 
of  primogeniture,  but  should  pass  under  the  will  to  the  execu- 
tors of  the  deceased,  or,  in  the  case  of  intestacy,  to  the  adminis- 
trator, with  the  rest  of  the  chattels.  Thus  leasehold  interests 
came  to  be  classed  with  personal  property.  Since  however  they 
are  rights  over  things  immovable,  they  received  the  mongrel 
name  of  '  chattels  real,'  and  cannot  be  excluded  from  a  treatise 
professing  to  deal  with  real  property. 

The  nature  of  the  remedy  provided  for  the  ejected  leaseholder, 
contra  quoscunque  dejectores,  has  already  been  stated^.  The  writ 
of  ejecfio  Jirmae,  however,  left  the  lessee  without  remedy  in  two 
cases.  First,  not  having  the  freehold,  he  was  liable  to  be  ousted 
by  the  successful  plaintiff  in  a  collusive  action  against  the  lessor, 
in  which  the  lessor  allowed  judgment  to  go  against  him  by  de- 
fault, or,  as  it  was  technically  called,  suffered  a  recovery.  A 
partial  remedy  for  this  injustice  was  provided  by  the  Statute  of 
Gloucester^,  but  the  leaseholder  Avas  not  wholly  protected  against 
a  proceeding  of  this  nature  till  the  Statute  21  Henry  VIII,  c.  15. 
Secondly,  if  the  lessor  ejected  the  lessee,  and  then  enfeoffed  a 
third  person,  the  lessee  could  not  bring  his  writ  of  ejectio  firmae 
against  the  feoffee,  because  he  was  not  the  ejector ;  nor  against 
the  lessor,  because  he  was  not  in  possession.  A  further  remedy 
was  therefore  necessary,  and  a  writ  was  devised  called  the  writ 
of  quare  ejecit  infra  terminum,  which  was  available  in  the  case 
supposed  against  the  feoffee  ^. 

Thus  the  interest  of  the  lessee  for  years  was  gradually  pro- 
tected at  all  points,  and  took  its  place  as  a  distinct  class  of 
rights  of  property. 

An  important  class  of  interests,  of  the  nature  of  estates  for 
years,  should  be  mentioned  here.  These  are  estates  at  will, 
estates  from  year  to  year,  and  estates  at  sufferance. 

A  tenancy  at  will  is  where  the  land  is  held  by  the  tenant  so  long 


1  See  Chap.  Ill,  §  16. 

^  6  Edward  I,  c.  11.     See  Coke  upon  Littleton,  46  a. 

^  See  Fitzherbert,  Natura  Brevium,  198  a. 


^1.1  Leasehold  Interests.  171 

as  lessor  and  lessee  please  that  the  tenancy  should  continue.  No 
notice  from  either  party  is  necessary  to  terminate  a  tenancy  at 
will  strictly  so  called ;  any  act  by  either  party,  affording  to  the 
other  proper  evidence  of  his  determination  that  the  tenancy 
should  no  longer  continue,  is  sufficient.  The  chief  characteristics 
of  this  tenancy  will  be  found  in  the  extract  from  Littleton  given 
below. 

The  inconveniences  of  tenancies  at  will  induced  the  tribunals 
to  provide  some  means  of  giving  greater  security  to  a  tenant 
who  held  under  no  regular  lease  for  years.  The  circumstances 
of  the  letting — especially  the  character  of  the  rent,  whether  pay- 
able yearly,  half-yearly,  quarterly,  or  otherwise— are  looked  to, 
in  order  to  ascertain  the  nature  of  the  interest  which  the  parties 
intended  to  create.  Most  commonly  the  reservation  of  an 
annual  rent  and  payment  of  any  part  of  it  is  held  to  constitute 
what  is  called  a  tenancy  from  year  to  year.  Such  a  tenancy  can 
usually  be  put  an  end  to  only  at  the  end  of  the  current  year  of 
the  tenancy,  by  either  party  giving  at  least  half  a  year's  previous 
notice  to  quit  ^  Other  modifications  of  tenancies  at  will,  such 
as  quarterly,  monthly,  or  weekly  tenancies,  can  be  created,  de- 
pending in  each  case  upon  evidence  as  to  the  terms  of  the 
letting. 

Tenant  at  sufferance  is  where  a  lessee  whose  term  has  expired 
holds  on  after  its  expiration.  He  is  in  the  position  of  one  who 
has  come  in  rightfully,  but  holds  on  without  any  right.  He 
cannot  however  be  treated  as  a  trespasser  by  the  true  owner 
before  entiy  made  upon  him.  Any  recognition  by  the  owner 
will  convert  him  into  a  tenant  at  will  ;  and,  if  he  has  held  pre- 
viously under  a  regular  lease,  it  requires  but  slight  evidence  to 
lead  to  the  inference  that  a  tenant  at  sufferance  has  been  con- 
verted into  a  tenant  from  year  to  year  on  the  terms  of  his  pre- 
vious holding  so  far  as  they  are  applicable. 


1  '  This  kind  of  lease  was  in  use  as  long  ago  as  the  reign  of  Henry  VIII.' 
Blackstone,  ii.  p.  147,  note,  citing  Year  Book,  T.  13  Hen.  VIII,  15, 
16. 


i'j%  Completion  of  the  Commoti  Law.        [chap.  v. 


Terms  of  Years. 

Bbitton  \  lib.  V.  chap.  xiv.  §  8.  Ceo  mot,  terme,  se  esteut 
ausi  bien  a  terme  de  vie  cum  a  terme  des  amiz.  Mes  cil  qi  ne 
lest  for  qe  a  terme  des  aunz,  tut  feist  il  le  les  a  terme  de  c.  aunz, 
si  il  ne  lest  for  qe  les  esplez,  et  retient  vers  ly  le  fee  et  le  dret 
et  le  fraunc  tenement,  si  avauut  le  les  le  out ;  et  ceo  qe  il  retient 
lerra  a  soen  heir  cum  il  morra ;  ou  sauntz  tort  fere  al  fermer 
porra  il  doner  et  aliener  a  estraunge  persone ;  ou  al  fermer 
mesmes  purra  il  relesser  chescune  manere  de  di'eit  et  quite- 
clamer,  et  feffer,  sauntz  oster  primes  le  fermer  de  sa  seisine  tele 
quele  ^ ;  et  ausi  ne  purra  il  mie  fere  a  autre  estraunge  persone, 
si  le  fermer  de  soen  gr^  ne  se  cheve  al  purchaceour  ^ ;  car  la 
seisine  del  alienour  sei  continue  touz  jours  par  le  fermer,  qi  use 
sa  seisine  en  le  noun  soen  lessour. 


Translation. 

This  word  '  term '  extends  as  well  to  a  term  of  life  as  to  a 
term  of  years.  But  he  who  leases  only  for  a  term  of  years, 
although  he  make  the  lease  for  a  term  of  a  hundred  years,  leases 
the  profits  only,  and  retains  to  himself  the  fee  and  the  right  and 
the  frank  tenement,  if  he  had  them  before  the  lease  ;  and  all  that 
he  retains  he  will  leave  at  his  death  to  his  heir,  or  he  may,  with- 
out doing  any  wrong  to  the  farmer,  give  and  alien  it  to  a 
stranger  ;  or  he  may  release  and  quit  claim  every  sort  of  right  to 
the  farmer  himself,  and  enfeoff  him,  without  first  ousting  the 

'  See  above,  Chap.  IV.  p.  146.  The  text  and  translation  are  taken  from 
Nichols'  edition. 

^  The  farmer  or  lessee  is  not  seised,  for  he  has  no  freehold  interest  (see 
above,  p.  125),  but  is  only  possessed  ;  nor  is  the  freeholder  actually  seised,  for 
he  has  parted  with  the  possession.  '  The  possession  of  the  termor  or  lessee 
constitutes  the  seisin  of  the  freeholder.'  Hence  the  reversion  lies  in  grant, 
not  in  livery ;  i.e.  can  be  granted  by  deed  with  attornment  (see  next  note). 
At  the  same  time  the  freeholder  can,  with  the  consent  of  the  lessee,  come 
on  the  land  and  make  livery  of  the  freehold  to  a  third  person  ;  in  which 
case  the  freehold  in  possession  passes,  and  not  merely  the  reversion. 

2  Until  the  Statute  4  and  5  Anne,  c.  16,  the  grant  of  a  freehold  reversion 
expectant  on  a  term  of  years  must  have  been  completed  by  the  attornment 
or  acknowledgment  of  the  grantee  by  tenant  for  years.  The  necessity  of 
attornment  was  done  away  with  by  that  Statute. 


§  I.]  Authoiities  as  to  Leasehold  Interests.  173 

farmer  of  liis  seisin,  such  as  it  is.  This  he  caunot  do  to  a 
stranger,  unless  the  farmer  of  his  own  consent  will  attorn  to  the 
purchaser  ;  for  the  seisin  of  the  alienor  is  all  along  continued  by 
the  farmer  who  enjoys  his  seisin  in  the  name  of  his  lessor. 


Tenant  for  Term  of  Years. 

Littleton's  Tenuees,  chap.  vii. sect.  58.  Tenaunt  pur  terme  dez 
ans  est  lou  home  lessa  terres  ou  tenementes  a  un  autre  pur  terme  de 
certeins  ans  solonques  le  nombre  dez  ans  que  est  accorde  perentre 
le  lessour  et  le  lesse.  Et  quant  le  lessd  entra  per  force  de  le  lee.s, 
donques  il  est  tenaunt  pur  terme  dez  ans.  Et  si  le  lessor  en  tiel 
cas  reserva  a  luy  vm  annuell  rente  sur  tiel  lees,  il  poet  eslier  a 
distreigner  pur  le  rente  en  les  tenementes  lessez,  ou  il  poet  aver 
une  accion  de  dette  pur  les  arrerages  envers  le  lessee 

Sect.  59.  Et  est  assavoir,  que  en  lees  pur  terme  dez  ans  per 
fait  ou  sauns  fait,  il  ne  besoigne  ascun  liverc  de  seisin  destre 
fait  a  le  less^,  mes  il  poet  entrer  quanques  il  voet  per  force  de 
mesme  le  lees.  Mes  de  feoffementes  faitz  en  pays,  ou  dones  en 
le  taille,  ou  leses  pur  terme  de  vie,  en  tielx  cases  ou  frauktene- 
ment  passera,  si  ceo  soit  per  fait  ou  sauns  fait,  il  covient  daver  un 
livere  de  seisin. 

Sect.  60.  Mes  si  home  lessa  tei'rez  ou  tenementes  per  fait,  ou 
sauns  fait,  a  un  pur  terme  dez  ans,  le  remaindre  oustre  a  un 
autre  pur  terme  de  vie,  ou  en  le  taille,  ou  en  fee,  donques  en  tiel 
case  il  covient  que  le  lessour  fait  un  livere  de  seisin  a  le  less6 
pur  terme  dez  ans,  ou  autrement  riens  passera  a  ceux  en  le  re- 
maindre, coment  que  le  lessee  entra  en  les  tenementes.  Et  si  le 
termor  en  tiel  cas  entra  devant  ascun  liverc  de  seisin  fait  a  luy, 
donques  est  le  franktenement  et  auxi  la  revercion  en  le  lessour  : 
mes  si  soit  fait  livere  de  seisin  a  le  lessee,  donques  est  le  frank- 
tenement  ove  le  fee  a  ceux  en  le  remaindre,  solonques  la  fourme 
del  graunt  et  la  voluute  de  lessour. 

Chap,  viii,  sect.  68.  Tenaunt  a  voluute  est  ou  terres  ou  tene- 
mentes sont  losses  per  un  home  a  un  autre,  a  aver  et  tener  a  luy 
a  la  volunte  le  lessour,  per  force  de  quel  lees  le  less^  est  en  posses- 
sione,  en  tiel  cas  le  lesse  est  appelle  tenaunt  a  volunte,  pur  ceo  que 
il  nad  ascun  certeyn  sure  estate,  qar  le  lessour  luy  poet  oustre  a 
quel  temps  quil  luy  jjlerroit :  unquore  si  le  lesse  embleia  la  terre 
et  le  lessour  apres  lembleier,  et  devaunt  que  les  blees  sont  matures 


174  Comjoletion  of  the  Common  Lmc.       [[chap.  v. 

luy  ousta,  unquore  le  less^  avera  les  blees,  et  avera  frank  entre, 
egresse,  et  regresse  a  scier  et  de  carier  les  blees,  pur  ceo  que  il  ne 
savoit  a  quel  temps  son  lessor  voilloit  entrer  sur  luy.  Autre- 
ment  est  si  tenaunt  pur  terme  dez  ans  qui  conust  le  fyn  de  son 
terme  embleia  la  terre,  et  le  terme  est  finye  devaunt  que  les 
blees  sont  matures ;  en  ceo  cas  le  lessour,  ou  celuy  en  la  rever- 
cion  avera  les  blees,  pur  ceo  que  le  termour  bien  conust  le  certeynte 
de  son  terme  et  quant  sa  terme  serroit  fynye. 


Sir  E.  Coke's  Translation. 

Sect.  58.  Tenant  for  term  of  years  ivS  where  a  man  lettetli 
lands  or  tenements  to  another  for  term  of  certain  years,  after  the 
number  of  years  that  is  accorded  between  the  lessor  and  the 
lessee.  And  when  the  lessee  entereth  ^  by  force  of  the  lease, 
then  is  he  tenant  "for  term  of  years ;  and  if  the  lessor  in  such 
case  reserve  to  him  a  yearly  rent  upon  such  lease,  he  may  chuse 
for  to  distrain  -  for  the  rent  in  the  tenements  letten,  or  else  he 
may  have  an  action  of  debt  for  the  arrearages  against  the 
lessee 

Sect.  59.  And  it  is  to  be  understood,  that  in  a  lease  for 
years,  by  deed  or  without  deed,  there  needs  no  livery  of  seisin 
to  be  made  to  the  lessee,  but  he  may  enter  when  he  will  by  force 
of  the  same  lease.  But  of  feoffments  made  in  the  country,  or 
gifts  in  tail,  or  leases  for  term  of  life  ;  in  such  cases  where  a  free- 
hold shall  pass,  if  it  be  by  deed  or  without  deed,  it  behoveth  to 
have  livery  of  seisin. 

Sect.  60.  But  if  a  man  letteth  lands  or  tenements,  by  deed 
or  without  deed,  for  term  of  years,  the  remainder  ^  over  to  an- 


^  Entry  is  necessary  in  order  to  complete  the  interest  of  the  lessee. 
Before  entry  the  lessee  has  an  interest  called  an  interesse  termini,  that  is,  an 
indefeasible  right  of  entry,  which  may  be  asserted  by  his  executors  or  ad- 
ministrators if  he  die  without  having  entered. 

'^  The  right  to  distrain  for  rent  in  arrear  is  incidental  to  the  relation  of 
lessor  and  lessee.  Whatever  moveable  things  are  upon  the  demised  tene- 
ments, whether  belonging  to  the  lessee  or  not,  are  liable  to  distress,  with 
certain  specified  exceptions — beasts  of  the  plough,  materials  used  in  trade, 
etc.     See  Coke  upon  Littleton,  47  a. 

^  See  below,  §  3.  •     , 


§  I.]  Authorities  as  to  Leasehold  Interests.  175 

other  for  life,  or  in  tail,  or  in  fee,  in  this  case  it  behoveth,  that 
the  lessor  maketh  livery  of  seisin  to  the  lessee  for  years,  other- 
wise nothing  passeth  to  them  in  the  remainder,  although  that  the 
lessee  enter  into  the  tenements.  And  if  the  termor  in  this  case 
entereth  before  any  livery  of  seisin  made  to  him,  then  is  the 
freehold  and  also  the  reversion  in  the  lessor.  But  if  he  maketh 
livery  of  seisin  to  the  lessee,  then  is  the  freehold  together  with 
the  fee  to  them  in  the  remainder,  according  to  the  form  of  the 
grant  and  the  will  of  the  lessor. 

Sect.  68.  Tenant  at  will  is,  where  lands  or  tenements  are  let 
by  one  man  to  another,  to  have  and  to  hold  to  him  at  the  will  of 
the  lessor  \  by  force  of  which  lease  the  lessee  is  in  possession. 
In  this  case  the  lessee  is  called  tenant  at  will  because  he  hath  no 
certain  nor  sure  estate,  for  the  lessor  may  put  him  out  at  what 
time  it  pleaseth  him.  Yet  if  the  lessee  soweth  the  land,  and  the 
lessor,  after  it  is  sown  and  before  the  corn  is  ripe,  put  him  out, 
yet  the  lessee  shall  have  the  corn,  and  shall  have  free  entry, 
egress,  and  regress  to  cut  and  carry  away  the  corn,  because  he 
knew  not  at  what  time  the  lessor  would  enter  u^ion  him  ^. 
Otherwise  it  is,  if  tenant  for  years,  which  knoweth  the  end  of  his 
term,  doth  sow  the  land,  and  his  term  endeth  before  the  corn  is 
ripe ;  in  this  case  the  lessor  or  he  in  the  reversion  shall  have 
the  corn,  because  the  lessee  knew  the  certainty  of  his  term,  and 
when  it  would  end. 

*  This  estate  is  at  the  will  of  both  parties,  and  therefore  the  lessee,  like 
the  lessor,  can  put  an  end  to  it  without  notice. 

^  '  And  this  is  not  only  proper  to  a  lessee  at  will,  that  when  the  lessor 
determines  his  will  that  the  lessee  shall  have  the  corn  sown  etc.,  but  to 
every  particular  tenant  that  hath  an  estate  incertain,  for  that  is  the  reason 
which  Littleton  expresseth  in  those  words  ['because  he  hath  no  certain 
nor  sure  estate']  ;  and  therefore  if  tenant  for  life  soweth  the  ground  and 
dieth,  his  executors  shall  have  the  corn,  for  that  his  estate  was  uncertain 
and  determined  by  the  act  of  God.  And  the  same  law  is  of  the  lessee  for 
years  of  tenant  for  life.  .  .  If  tenant  pur  tenne  d' autre  vie  soweth  the 
ground  and  cesty  que  vie  dieth,  the  lessee  shall  have  the  corn.  .  .  But 
if  the  lessee  at  will  sow  the  ground  with  corn  etc.,  and  after  he  himself  de- 
termine his  will  and  refuseth  to  occupy  the  ground,  in  that  case  the  lessor 
shall  have  the  com,  because  he  loseth  his  rent.  And  if  a  woman  that 
holdeth  land  dni-ante  viduitate  sua  soweth  the  ground  and  taketh  husband, 
the  lessor  shall  have  the  emblements,  because  that  the  determination  of  her 
own  estate  grew  by  her  own  act.'  Coke,  Comment,  ad  loo.  55  b.  The 
crops  to  which  a  tenant  whose  estate  is  terminated  is  thus  entitled  are  called 
emblements.    See  Blackstone,  ii.  pp.  122,  145. 


176  Completion  of  the  Common  Lav).         [chap.  v. 


§  2.  Estates  Tail. 

'  Tenant  in  fee  tail,'  says'  Littleton  \  '  is  by  force  of  the 
Statute  of  Westminster  the  2nd,  cap.  i.'  The  mode  in  which 
that  Statute  created  what  was  in  effect  a  new  species  of  estate 
has  already  been  explained  ^.  The  various  attributes  of  estates 
tail  became  the  constant  subject  of  judicial  decision,  and  intro- 
duced a  vast  amount  of  complexity  into  the  law  relating  to  land. 
The  tendency  of  the  courts  was  to  extend  the  provisions  of  the 
Statute  so  as  to  embrace  other  cases  besides  those  mentioned  in 
its  text.  Wherever  to  the  words  of  inheritance  were  added  words 
of  procreation,  wherever  it  was  expressed  directly  or  indirectly 
that  the  lands  were  to  go  to  the  heirs  who  were  the  issue  of  the 
body  of  the  donee,  the  case  was  held  to  fall  within  the  limits  of 
the  Statute  ^. 

There  were  four  principal  classes  of  estates  tay  recognised : 
estates  in  tail  general,  estates  in  tail  special,  estates  in  tail  male, 
and  estates  in  tail  female.  An  estate  in  tail  general  was  where 
an  estate  was  given  to  a  man  or  woman  and  the  heirs  of  his  or 
her  body  generally,  the  estate  descended  to  the  legitimate  de- 
scendants of  the  donee  without  restriction  to  the  issue  of  any 
particular  marriage.  An  estate  in  special  tail  was  where  the 
lauds  were  descendible  only  to  a  limited  class  of  lineal  descend- 
ants, as  where  lands  were  given  to  A  and  the  heirs  of  his  body 


1  Qect.  13.  '^  See  Chap.  IV.  §  3. 

3  '  If  therefore  either  the  words  of  inheritance  or  the  words  of  procrea- 
tion be  omitted,  albeit  the  others  are  inserted  in  the  grant,  this  will  not 
make  an  estate  tail.  As  if  the  grant  be  to  a  man  and  the  issue  of  his 
lody,  to  a  man  and  his  seed,  to  a  man  and  his  children,  or  offspring ;  all 
these  are  only  estates  for  life,  there  wanting  the  words  of  inheritance, 
his  heirs.  So  on  the  other  hand  a  gift  to  a  man,  and  his  heirs  jnale,  or 
female,  is  an  estate  in  fee  simple,  and  not  in  fee  tail  ;  for  there  are  no 
words  to  ascertain  the  body  out  of  which  they  shall  issue.  Indeed,  in  last 
wills  and  testaments,  wherein  greater  indulgence  is  allowed,  an  estate  tail 
may  be  created  by  a  devise  to  a  man  and  his  seed,  or  to  a  man  and  his  heirs 
male;  or  by  other  irregidar  modes  of  expression.'    Blackstone,  ii.  p.  115. 


§  2.]  Estates  Tail.  177 

by  G  his  present  wife.  If  no  such  heirs  were  born,  the  estate 
on  the  death  of  A  reverted  to  the  donor ;  and  as  on  the  death 
of  C  the  wife  without  issue  this  must  necessarily  be  the  case,  A 
becomes,  after  that  event,  what  is  technically  called  '  tenant  in 
tail  after  possibility  of  issue  extinct.'  Gifts  in  frank-marriage 
differed  only  from  these  gifts  in  special  tail  in  being  free  from 
all  liability  to  service  to  the  donor  until  the  fourth  generation 
of  tenants  \ 

An  estate  in  tail  male  was  where  by  the  form  of  the  gift  the 
descent  was  restricted  to  lineal  male  descendants  ^.  An  estate  in 
tail  female  was  where  the  descent  was  restricted  to  lineal  female 
descendants.  These  two  latter  classes  of  entails,  though  not 
within  the  express  words  of  the  Statute  of  Westminster  II,  were 
recognised,  according  to  Littleton,  by  the  equity  of  the  Statute  ^. 

Inasmuch  as  the  estate  of  tenant  in  tail  was,  according  to  the 
metaphorical  expression  of  the  lawyei's,  '  carved  out  of,'  that  is, 
less  than  an  estate  in  fee  simple  and  different  from  it  *,  it  followed 
that  if  tenant  in  fee  simple  made  a  gift  in  tail,  such  a  gift  was 
not  within  the  Statute  of  Quia  Emptores,  but  a  tenure  was 
created  between  tenant  in  tail  and  tenant  in  fee  simple,  the 
former  holding  of  the  latter''. 

1  Littleton,  sects.  16,  17,  19. 

^  This  was  settled  in  a  case  which  arose  in  18  Edward  III.  Gift  to  A 
and  the  heirs  male  of  his  body.  A  had  issue  a  daughter,  who  had  issue  a 
son ;  question,  whether  A's  grandson  could  succeed  per  formam  doni.  Held 
that  he  could  not,  the  gift  being  of  a  more  restricted  character  than  an 
estate  which  is  given  generally  to  heirs  of  the  body.     (Reeves,  ii.  p.  336.) 

^  Sect.  21.  When  a  particular  case  does  not  fall  within  the  express  terms 
of  a  statute,  but  the  judge,  conceiving  that  the  legislator  in  pursuance 
of  his  general  design  would  have  embraced  the  case  if  it  had  been  present 
to  his  mind,  acts  as  if  it  was  covered  by  the  statute,  the  case  is  said  to  fall 
within  the  '  equity  of  the  statute.'     See  Austin,  ii.  p.  596. 

*  An  estate  tail  is  said  to  be  less  than  a  fee  simple,  because  the  law  re- 
gards as  a  disposable  interest  the  possibility  of  enjoying  the  lands  after  the 
determination,  by  failure  of  issue  or  otherwise,  of  the  estate  tail.  There  is 
no  estate  larger  than  a  fee  simple,  because  the  law  does  not  regard  the  pos- 
sibility of  the  enjoyment  of  the  estate  after  the  failure  of  heirs  general  as  a 
disposable  interest.     Littleton,  sect.  18. 

*  Littleton^  sect.  19. 


178  Completion  of  the  Common  Law.        [chap.  v. 

It  must  be  borne  in  mind  that  estates  tail  are  only  known  in 
freehold  interests,  and  that  there  can  be  no  estate  tail  in  a 
chattel-interest,  such  as  a  term  of  years. 

The  history  of  the  alienation  of  estates  tail  is  connected  with 
the  difficult  and  obsolete  doctrine  of  warranty,  of  which  the 
Courts  took  advantage  to  break  in  upon  the  policy  of  the  law  as 
conceived  by  the  great  barons  who  procured  the  enactment  of 
the  Statute  of  Westminster  II.  The  effect  of  a  warranty  accom- 
panying a  gift  of  an  estate  of  inheritance  was  to  oblige  the  war- 
rantor or  donor  to  defend  the  possession  of  his  donee.  If  the 
donee  was  ousted  by  a  claimant  establishing  a  superior  title, 
the  warrantor  was  bound  to  give  his  donee  or  his  representa- 
tives lands  of  value  equal  to  those  of  which  he  was  deprived.  The 
burden  of  this  obligation  would  descend  to  the  heirs  of  the  war- 
rantor (at  least  to  the  extent  of  preventing  the  heir  from  disputing 
his  ancestor's  gift),  and  the  benefit  of  it  to  the  heirs  of  the  donee  ^. 
This  principle  would  have  been  sufficient,  if  applied  to  estates  tail, 
to  have  enabled  a  tenant  in  tail,  by  alienating  his  land  with  a  war- 
ranty, to  have  given  the  purchaser  an  estate  which  his  heir  could 
not  defeat.  It  seems,  however,  to  have  been  held  early  in  the 
reign  of  Edward  II  ^  that,  if  tenant  in  tail  aliened  the  land  with 
warranty,  the  heir  of  the  tenant  in  tail  was  not  bound  by  his 
ancestor's  alienation  and  warranty  (that  is,  could  defeat  the 
estate  of  the  donee  or  his  heirs  by  claiming  in  opposition  to 
the  gift  of  the  ancestor),  unless  he  had  assets  (lands  in  fee  simple 
equivalent  to  those  which  had  been  granted  away)  by  descent 
from  his  ancestor '.  On  the  other  hand,  if  he  had  assets,  the 
ordinary  rule  prevailed,  and  the  heir  of  the  warrantor  was 
bound  by  his  ancestor's  warranty.  And  if  the  warrantor  was  a 
prior  tenant  in  tail,  who  had  died  without  issue,  upon  which, 
according  to  the  limitations  of  the  estate,  the  laud  went  over 

^  Littleton,  sect.  697.  ^  Reeves,  ii.  pp.  200,  203. 

^  Littleton,  sect.  712.  Reeves  stows  (ii.  p.  204)  that  this  rule  of  law 
is  probably  an  extension  of  the  provisions  of  the  Statute  of  Gloucester 
(6  Edward  \,  c.  3)  as  to  alienation  of  tenants  by  the  curtesy.  See 
Littleton,  sect.  724. 


§  2.]  Estates  Tail.  179 

to  a  subsequent  tenant  in  tail,  such  last  tenant  in  tail  was  bound 
by  the  warranty  of  his  predecessor,  even  though  there  were  no 
assets.    This  was  called  collateral  d.?,  opposed  to  lineal  Avarranty^ 

The  doctrine  that  the  issue  of  the  tenant  in  tail  was  bound 
by  his  ancestor's  alienation  with  warranty  only  in  cases  where 
he  had  assets  by  descent,  greatly  narrowed  the  power  of  effectual 
alienation  possessed  by  the  tenant  in  tail.  And  it  must  be  re- 
membered that  even  where  such  alienation  was  binding  on  the 
issue,  it  would  not  bind  the  lord  or  donor  so  as  to  bar  him  of  his 
reversion  ^  in  the  event  of  the  failure  of  issue  of  the  donee  in  tail. 

Thus  the  Statute  de  Donis,  as  interpreted  by  the  Courts,  put 
an  effectual  check  to  the  practice  of  free  alienation  of  estates, 
where,  as  was  commonly  the  case,  words  of  procreation  were 
added  to  the  words  of  inheritance. 

As  time  went  on,  the  gi'eat  inconvenience  of  such  a  restriction 
was  strongly  felt.  Titles  were  insecure,  for  an  old  entail,  of 
which  nothing  was  known,  might  be  brought  to  light ;  nor 
would  any  period  of  enjoyment,  however  long,  afford  an  answer 
to  such  a  claim.  *  Farmers  were  ousted  of  their  leases,  creditors 
defrauded  of  their  debts.'  The  free  alienation  of  land  was 
restrained,  a  grievance  which  was  probably  felt  with  increasing 
severity  in  consequence  of  the  impoverishment  of  the  landowners 
caused  by  the  wars  of  the  Roses.  The  king,  too,  suffered  by 
the  protection  against  forfeiture  which  the  practice  afforded  to 
the  issue  of  a  traitor.  Thus  all  members  of  the  cotnmunity, 
except  perhaps  the  great  landowners  themselves,  were  interested 
in  obtaining  a  relaxation  of  the  practice  of  strictly  entailing 
lands  which  had  grown  up  under  the  provisions  of  the  Statute  of 
Westminster  II  ^. 

^  Reeves,  li.  p.  340. 

*  And  this  reversion  is  now  a  definite  estate  or  interest,  not  a  mere  possi- 
bility of  the  lands  escheating.  It  is  a  reversion  in  fee  expectant  on  the  de- 
termination of  the  estate  tail.     See  below,  §  3. 

*  '  But  the  true  policy  and  rule  of  the  common  law  in  this  point  was  in 
effect  overthrown  by  the  Statute  de  Donis  Conditionalibus,  which  estab- 
lished a  general  perjietuity  by  Act  of  Parliament  for  all  who  had  or  would 

N  2 


i8o  Completion  of  the  Common  Law.        [chap.  v. 

Although  feigned  recoveries,  or  fictitious  suits  in  which  a 
writ  of  right  was  brought  by  a  third  person  against  the  tenant, 
who  thereupon  suffered  judgment  to  pass  against  him,  had  long 
been  known  as  a  mode  of  conveying  lands,  it  was  for  some  time 
thought  that  the  heir  of  tenant  in  tail  was  not  bound  by  a  judg- 
ment so  obtained  against  his  ancestor.  *  In  the  reigns  of 
Henry  IV  and  Henry  V  some  doubts  began  to  be  entertained 
whether  a  recovery  suffered  by  tenant  in  tail  was  not  good 
against  the  issue  ^  '  These  doubts  continued  without  being 
finally  determined  during  the  reign  of  Henry  VI.  They  were 
at  length  set  at  rest  by  the  introduction  of  a  series  of 
fictions,  by  virtue  of  which  it  was  feigned  that  a  gift  with 
warranty  had  been  made  by  the  original  donor  of  the  tenant 
in  tail,  and  that  tenant  in  tail  received  an  equivalent  for 
the  lands.  By  a  second  fiction  a  supposed  original  donor  was 
made  a  party  to  the  suit,  and  upon  his  failing  to  defend  his 
fictitious  gift,  he  and  his  heirs  were  barred  of  their  reversion. 
This  was  the  course  adopted,  though  possibly  not  for  the  first 
time,  in  the  famous  '  Taltarum's  Case  '(12  Edward  IV).  A  trans- 
lation of  the  pleadings  is  given  below.  From  this  time  till  1834 
(3  and  4  Will.  IV,  c.  74)  it  became  the  common  practice  for 
tenant  in  tail  to  '  suffer  a  recovery; '  that  is,  by  a  proceeding 

make  it,  by  force  whereof  all  the  possessions  in  England  in  effect  were  en- 
tailed accordingly,  which  was  the  occasion  and  cause  of  the  said  and  divers 
other  mischiefs.  And  the  same  was  attempted  and  endeavoured  to  be 
remedied  at  divers  parliaments,  and  divers  bills  were  exhibited  accord- 
ingly (which  I  have  seen),  but  they  were  always  on  one  pretence  or 
another  rejected.  But  the  truth  was  that  the  lords  and  commons,  know- 
ing that  their  estates  tail  were  not  to  be  forfeited  for  felony  or  treason,  as 
their  estates  of  inheritance  were  before  the  said  Act  (and  chiefly  in  the 
time  of  Hen.  3,  in  the  Barons'  War),  and  finding  that  they  were  not 
answerable  for  the  debts  or  incumbrances  of  their  ancestors,  nor  did  the 
sales,  alienations,  or  leases  of  their  ancestors  bind  them  for  the  lands  which 
were  entailed  to  their  ancestors,  they  always  rejected  such  bills,  and  the 
same  continued  in  the  residue  of  the  reign  of  E.  i  and  the  reigns  of  E.  2, 
E.  3,  R.  2,  H.  4,  H.  5,  and  H.  6,  till  about  the  12th  year  of  E.  4,'  etc.  Sir 
Anthony  Mildmay's  Case,  Coke's  Reports,  6.  40  a.  See  Blackstone,  ii.  1 16. 
*  Reeves,  ii.  573. 


§  2.]  ^         Estates  Tail.  181 

similar  to  that  adopted  in  Taltarum's  case,  to  convert  lils  estate 
into  a  fee  simple.  In  effect,  therefore,  wherever  an  estate  tail 
was  given,  tenant  in  tail  might,  so  soon  as  he  came  of  age,  by 
this  process  give  to  another  an  estate  in  fee  simple,  which  by 
arrangement  might  then  be  re-conveyed  to  himself,  and  thus  he 
was  enabled  to  cut  off,  bar,  or  defeat  the  expectations  of  his  own 
issue,  and  the  interests  of  all  persons  claiming  after  him  in  re- 
mainder or  reversion.  After  a  statute  passed  in  the  reign  of 
Henry  VIII,  the  same  result  might  have  been  effected  by  a  fine. 

By  the  above-mentioned  statute  (3  and  4  Will.  IV,  c.  74) 
fines  and  recoveries  were  abolished,  and  tenant  in  tail  may  now, 
by  a  deed  enrolled  in  Chancery,  alienate  his  lands  for  any  estate 
in  fee  simple  or  otherwise  ^  and  thus  defeat  the  expectations  of 
his  own  issue  and  of  all  remainder-men  and  reversioners  ^. 

The  only  additional  restriction  imposed  upon  the  alienation 
of  an  estate  tail  is  that  the  consent  of  the  person  who  is  called 
the  Protector  of  the  settlement  is  necessary  to  its  being  effec- 
tually barred.  The  Protector  of  the  settlement  is  usually  the 
tenant  for  life  in  possession ;  but  the  settlor  of  the  lands  may 
appoint  in  his  place  any  number  of  persons  not  exceeding  three 
to  be  together  Protector  during  the  continuance  of  the  estates 
preceding  the  estate  tail  ^.  The  practical  effect  therefore  of  an 
estate  tail  at  the  present  day  is  to  prevent  the  alienation  of  lands 
for  a  valid  estate  of  inheritance  in  all  cases  till  tenant  in  tail 
comes  of  age  *.     After  this,  his  power  of  disposing  of  the  lands 


^  Except  that  in  the  case  of  a  lease  not  exceeding  twenty-one  years  at  a 
rack-rent,  or  not  less  than  five-sixths  of  a  rack-rent,  no  enrolment  is  neces- 
sary.    Sect.  41. 

*  Or  persons  entitled  to  a  remainder  or  reversion.     See  §  3. 
3  Sect.  32. 

*  It  is  almost  the  universal  practice,  when  lands  are  brought  into  strict 
settlement  upon  a  marriage,  to  give  an  estate  for  life  to  the  husband, 
followed  by  an  estate  tail  to  the  eldest  (unborn)  son.  Consequently  the 
lands  cannot  be  alienated  for  an  estate  in  fee  simple  until  the  son  attains 
the  age  of  twenty-one.  In  order  to  effect  an  alienation  then,  it  is  necessary 
that  father  and  son  should  botli  join.  The  lands,  if  not  alienated,  are  the 
freehold  of  the  father  for  his  life,  the  son  having  the  inheritance.     The 


1 82  Comjiletion  of  the  Common  Law.        [chap.  v. 

differs  from  that  of  tenant  in  fee  simple  only  in  the  mode  in 
which  it  is  exercised,  and  in  the  necessity,  where  the  estate  is 
not  in  possession,  for  the  consent  of  the  Protector.  There  is  a 
special  exception  in  the  Statute  of  tenants  in  tail  after  possibility 
of  issue  extinct  ^. 

Translation  of  the  Pleadings  in  Taltarums  Case. 
Year  Book,  12  Edward  IV,  19. 

In  a  Writ  of  Entry  on  the  Statute  of  Richard  2,  '  Uhi 
ingressus  non  datur  \Kr  legem  etc.,'  sued  against  one  J.  Smith, 
the  defendant  said  ^  that  the  plaintiff  ought  not  to  have  his 
action,  for  that  before  the  alleged  entry  one  T.  B.  was  seised 
of  the  tenements  etc.  in  fee,  and  gave  them  to  one  W.  Smith 
to  have  and  to  hold  to  him  and  the  heirs  of  his  body  begotten  ; 
by  force  of  which  he  was  seised,  and  had  issue  one  Richard,  and 
died  seised,  and  the  tenements  descended  to  Richard  ;  and  he 
entered  and  was  seised,  and  had  issue  the  said  J.  Smith,  and 
died  seised,  and  the  tenements  descended  to  the  said  J.  ;  and 
the  plaintiff  claiming  by  colour  of  a  deed  of  feoffment  before  the 
gift  etc.  entered,  upon  whose  possession  the  said  J.,  as  son  and 
heir  of  the  said  R.  at  the  time  of  the  alleged  entry,  entered,  etc. ; 
upon  which  entry  the  plaintiff  has  groimded  this  action.  To 
which  the  plaintiff  says  *  that  well  and  true  it  is  that  the  said  T.  B. 
gave  the  tenements  ut  supra  etc. ;  but  he  says  that  the  said  W. 
had  issue  one  Humfrey  the  elder  (son),  and  the  said  R.  the 
younger,  and  died;  after  whose  death  H.  entered  and  was 
seised  by  form  of  the  gift  etc. ;  and  being  so  seised,  one  T.  Tal- 
tarum  sued  a  writ  of  right  against  the  said  Humfrey,  returnable 
etc.  On  which  day  the  parties  appeared,  and  the  said  T.  Talta- 
rum  counted^  of  his  possession,  and  the  said  H.  made  defence,  and 
vouched  to  warranty  one  R.  King,  who  was  ready  and  entered  into 

effect  of  such  an  arrangement  upon  family  relations  is  a  point  worthy  of  the 
consideration  of  the  legislature,  in  considering  the  important  question  of 
the  retention  of  estates  tail  as  an  interest  recognised  by  law. 

1  3  and  4  Will.  IV,  c.  74.  s.  18. 

2  5  R.  II,  c.  8. 

3  Defendant's  plea. 

*  Plaintiff's  replication. 

^  This  is  the  narratio,  count,  or  formal  statement  of  the  plaintiff's  claim  in 
his  '  declaration.' 


§  2,]  Taltarum's  Case.  183 

the  warranty,  and  joined  issue  on  the  mere  right ;  and  the  said  Tal- 
tarum  imjiarled^  (with  him), and  then  returned  (into  court),  and  the 
tenant  by  the  warranty  did  not  return,  but  in  contempt  of  court 
made  default,  by  which  the  said  T.  T.  had  final  judgment  against 
the  said  H.,  and  he  over  against  the  tenant  by  the  warranty  ^, 
by  force  of  which  the  said  Taltarum  entered  and  was  seised  etc.; 
and  then  the  said  H.  died  without  heir  of  his  body,  and  then 
Taltarum  enfeoffed  the  present  plaintiff,  whereby  he  was  seised 
when  the  defendant  entered.  To  which  the  defendant  said  ^,  that 
well  and  true  it  is  that  the  said  W.  had  issue  Humfrey  the  elder 
and  R.  the  younger,  and  died  ;  and  that  after  his  death  the  tene- 
ments descended  to  Humfrey  as  son  and  heir,  and  he  entered  and 
was  seised  as  son  and  heir  by  the  form  of  the  gift  etc.  But  he  says  * 
that  the  aforesaid  Humfrey,  before  the  writ  purchased  ^  etc.,  en- 
feoffed one  Tregos  of  the  said  lands  in  fee  etc. ;  the  which  Tregos, 
before  the  writ  purchased,  gave  the  tenements  to  the  said  H.  and 
to  one  Jane  his  wife,  to  have  and  to  hold  to  them  and  to  the  heirs 
of  their  bodies  begotten,  the  remainder  to  the  right  heirs  of  the  said 
H.  in  fee  etc.,  by  force  of  which  they  were  seised  etc.,  and  then 
Jane  died,  after  whose  death  H.  was  sole  seised  of  the  said 
tenements  as  tenant  in  tail  after  possibility  (of  issue  extinct).  And 
so  being  seised  the  said  Taltarum  sued  the  said  writ  of  right,  and 
recovered  against  the  said  H.  in  the  manner  and  form  as  he  has 
alleged;  the  which  H.  continually  after  the  said  judgment 
during  his  life  was  seised  of  the  said  tenements  by  force  of  the 
gift  made  to  him  and  to  his  wife,  and  died  without  heir  of  his  body. 
After  whose  death  the  said  R,  as  brother  and  heir  of  the  said  H, 
begotten  of  the  body  of  W.,  entered  and  was  seised  by  force  of 
the  gift  made  to  W.,  and  died  seised ;  and  the  tenements  descended 

*  That  is,  by  leave  of  the  Court  the  two  parties  retire  to  discuss  the 
matter. 

2  For  the  recovery  of  lands  of  equal  value  by  way  of  compensation. 
^  Defendant's  rejoinder. 

*  The  defendant  by  this  pleading  does  not  question  the  effect  of  the  re- 
covery by  Taltarum,  but  sets  up  other  matter,  namely,  a  prior  alienation 
in  fee  by  Humfrey,  and  a  re-grant  in  special  tail  by  the  feoffee  to  Hum- 
frey and  his  wife.  His  contention  is,  that  it  is  this  estate  only  which  is 
defeated  by  Taltarum's  recovery,  and  not  the  oiiginal  estate  tail  given  to 
W.  Smith. 

'  That  is,  before  Taltarum's  suit,  Purchasing  a  writ  was  the  usual  expres- 
sion for  commencing  an  action  by  suing  out  a  writ,  for  which  the  usual 
fees  must  be  paid,  notwithstanding  the  provision  of  Magna  Carta  (c.  40), 
'Nulli  vendemus  rectum  aut  justitiam.' 


184  Completion  of  the  Common  Law.       [chap.  v. 

to  the  said  J.  Smith,  and  he  entered  and  was  seised  by  force  of 
the  gift  etc. ;  without  this ',  that  the  said  T.  Taltarum,  after  the 
said  recovei-y  in  the  life  of  the  said  H.,  entered  on  the  said  tene- 
ments, as  he  has  alleged  ;  and  without  this,  that  the  said  H.  had 
any  other  estate  in  the  said  tenements  on  the  day  of  the  purchase 
of  the  writ  of  right  or  afterwards,  except  that  by  force  of  the 
gift  made  to  him  and  to  his  wife  etc. ;  and  without  this,  that 
the  said  Taltarum  was  seised  of  the  said  tenements  as  of  fee  and 
of  right  in  the  time  of  the  king,  as  he  has  alleged,  and  that  the 
said  recovery  is  false  and  feigned  in  law  ^ 

'  '  Absque  hoc'  The  technical  term  by  which  the  denial  of  a  material 
allegation  of  the  plaintiff  was  introduced  in  the  kind  of  plea  called  a  special 
traverse.  This,  with  other  like  mysteries  of  the  older  form  of  pleading,  was 
made  unnecessary  by  the  Common  Law  Procedure  Act,  1852  (15  and  16 
Vict.  c.  76). 

^  The  important  point  in  these  pleadings  is  the  allegation  of  the  recovery 
Ijy  Taltarum  on  the  default  of  King,  who  had  been  vouched  to  warranty. 
The  fiction  is  that  King  is  the  donor,  and  that  he  had  made  the  original 
gift  in  tail  with  warranty,  and  in  consequence  of  his  being  vouched,  and 
accepting  the  challenge,  he  is  in  effect  substituted  as  the  defendant  in  Tal- 
tarum's  suit.  When  therefore  he  makes  default,  Taltarum  is  enabled  to 
i-ecover  the  lands  and  dispose  of  them  to  the  plaintiff  for  an  estate  in  fee 
simple.  Humphrey,  the  tenant  in  tail,  would  in  his  turn  be  entitled  to  re- 
cover against  King,  who  had  failed  in  substantiating  the  title  of  his  donee. 
This  of  course  was  a  mere  fiction.  It  appears  to  have  been  assumed  on 
both  sides  that  if  the  case  had  not  been  complicated  by  the  other  entail, 
which  according  to  the  defendant  had  been  created  before  the  recovery  by 
Taltarum  (and  the  case  was  on  this  point  decided  in  defendant's  favour), 
that  that  recovery  would  have  been  good,  inasmuch  as  the  ousted  tenant  in  tail 
would  have  had  his  recompense  against  the  vouchee,  for  this  is  the  ground 
on  which  the  Court  base  their  judgment.  This  is  the  point  which  makes 
Taltarum's  Case  so  important  a  turning-point  in  the  history  of  the  law  of 
estates  tail.  It  established,  not  expressly  but  by  implication,  that  the 
Courts  would  allow  a  tenant  in  tail  to  '  suffer  a  recovery,'  tliat  is,  to  procure 
a  plaintiff  to  bring  a  fictitious  action  against  tenant  in  tail,  or,  more  usually, 
against  some  person  to  whom  tenant  in  tail  had  granted  an  estate  for  the 
express  purpose  of  being  made  defendant  in  the  proceedings.  This  grantee 
was  technically  called  the  '  tenant  to  the  praecipe  or  writ.'  A  writ  of  right  for 
the  recovery  of  an  estate  in  fee  simple  was  thus  brought  collusively  by  the 
plaintiff  against  the  tenant  to  the  praecipe,  who  vouched  to  warranty  the 
donor  (the  tenant  in  tail),  and  he  in  his  turn  vouched  to  warranty  another 
person  supposed  to  be  his  donor,  usually  the  crier  of  the  court.  The  neces- 
Bary  steps  would  then  be  taken  to  try  the  matter  as  between  the  plaintiff 


§3-]  Reversions  and  Bemainders.  185 


§  3.  Interests  in  Futnro.     Reversions  and  Remainders. 

In  close  connexion,  speaking  historically,  with  the  doctrine  of 
estates  tail,  is  that  of  future  interests  or  estates  in  expectancy. 
An  estate  in  expectancy,  or,  more  accurately,  a  right  of  future 
enjoyment  of  lands  ^,  is  distinguished  from  an  estate  in  posses- 
sion, or  an  estate  of  present  enjoyment.  The  actual  enjoyment 
or  possession  of  lands  is  in  the  former  case  postponed  until  the 
lapse  of  a  specified  time,  or  the  happening  of  some  specified 
event.  On  the  other  hand,  these  estates  difier  from  mere 
chances  or  possibilities  of  rights,  inasmuch  as  they  are  distinct 
and  definite  interests  known  to  the  law,  capable  of  alienation  by 
the  appropriate  methods,  and  devolving  at  the  death  of  the  person 
entitled  upon  his  representatives.  Thus  in  the  case  of  a  gift  of 
lands  to  A  for  life,  and  after  his  decease  to  B  and  his  heirs,  B 
has  an  estate  in  fee  simple  in  the  lands,  postponed  in  point  of 
possession  or  enjoyment  till  after  the  death  of  A,  but  yet  a  pre- 
sent interest  which  he  can  dispose  of  in  the  proper  method,  and 
which  will  descend  to  his  heir.  On  the  other  hand,  the  expec- 
tation of  C,  eldest  son  of  D  tenant  in  fee  simple,  of  succeeding  to 

and  the  last  vouchee  ;  then  followed  the  farce  of  '  imparling,'  and  the 
default  of  the  second  vouchee,  the  recovery  of  the  fee  by  the  plaintiff, 
the  judgment  that  the  vouchee  should  recompense  the  tenant  in  tail  for 
his  default,  and  the  conveyance  of  the  fee  by  the  successful  plaintifiF 
to  the  ousted  tenant  in  tail.  (See  form  in  Blackstone,  vol.  ii.  appendix 
5.)  Thus  wherever  by  proper  words  a  tenancy  in  tail  was  created,  as 
for  instance  where  lands  were  given  to  B  and  the  heirs  of  his  body, 
remainder  to  C  in  fee,  it  was  in  the  power  of  B,  on  his  attaining  full 
age,  to  'suffer  a  recoveiy;'  or,  in  other  words,  to  turn  his  estate  tail  into 
an  estate  in  fee  simple,  thereby  causing  the  land  to  descend  to  heirs  col- 
lateral as  weU  as  lineal,  and  defeating  the  expectations  of  all  persons  having 
estates  limited  to  take  effect  subsequently  to  the  estate  tail.  That  the  legis- 
lature should  so  long  have  abstained  from  substituting  a  simpler  method, 
such  as  was  at  last  applied  in  1833,  for  a  process  so  cumbrous  and  so  ex- 
pensive, is  one  of  the  most  startling  of  the  many  marvellous  instances  in 
our  system  of  law  reforms  delayed,  owing  mainly  to  the  indifference  or 
ignorance  which  prevails  so  widely  with  respect  to  legal  questions. 
'  See  Fearne's  treatise  on  Contingent  Eemainders,  p.  2. 


1 86  Completion  of  the  Common  Law.         [chap.  v. 

his  father's  lands,  is  not  an  intei'est  recognised  by  the  law,  it  is 
merely  the  hope  or  chance  of  having  certain  rights  at  some 
future  time.  If  C  dies  before  his  father,  his  eldest  son  succeeds, 
not  as  representing  him,  but  as  heir  to  D  the  grandfather. 

At  present  we  are  only  concerned  with  such  interests  of  future 
enjoyment  as  belong  to  the  class  of  freehold  rights  over  land. 
These  are  of  two  kinds,  reversions  and  remainders. 

(i)  Reversions. 

"Where  a  freeholder  grants  away  some  estate  smaller  than  that 
which  he  has  himself,  he  has,  in  the  metaphorical  language  of 
the  law,  an  interest  left  in  him,  which,  though  not  immediately 
an  interest  of  present  possession  or  enjoyment,  will  become  such 
so  soon  as  the  smaller  preceding  interest  has  expired.  Thus, 
where  a  tenant  in  fee  simple  has  created  an  estate  in  tail,  for  life, 
or  for  years,  he  has  left  in  him  a  present  estate,  which  will  come 
into  possession  or  enjoyment  on  the  expiration  or  sooner  deter- 
mination of  the  estate  tail,  the  estate  for  life,  or  the  estate  for 
years.  The  smaller  estate  thus  granted  is  called  the  '  particular ' 
estate.  '  A  reversion,'  says  Sir  E.  Coke,  '  is  where  the  residue 
of  the  estate  always  doth  continue  in  him  that  made  the  par- 
ticular estate  ^.' 

It  has  already  been  observed,  that  between  the  reversioner  and 
the  tenant  of  the  particular  estate  a  tenure  exists — the  latter  holds 
of  the  former  ^.  Hence,  before  the  Statute  4  and  5  Anne,  c.  1 6, 
the  attornment  of  the  tenant  was  necessary  to  complete  the  gi-ant 
of  the  reversion ;  otherwise,  the  tenant  would  have  had  a  new 
lord  imposed  upon  him  without  his  consent. 

The  proper  mode  of  conveying  or  disposing  of  the  reversion 
is  by  grant,  that  is,  grant  by  deed,  or  writing  on  paper  or 
parchment  sealed  and  delivered.  Suppose  A  has  the  reversion 
in  fee  simple  expectant  on  an  estate  tail,  or  on  an  estate  for  life, 
or  on  an  estate  for  years.  He  can  by  a  simple  deed  of  grant 
create  any  number  of  estates  tail,  or  estates  for  life,  or  estates 

*  Coke  upon  Littleton,  22  b.  ■*  See  above,  p.  177. 


§  3  (i).]  Reversions.  187 

for  years  out  of  his  reversionary  interest,  and  dispose  of  them  as 
he  pleases.  He  can  deal  with  the  reversionary  interest  just  as 
he  can  deal  with  an  interest  in  possession,  only  he  cannot  give 
livery  of  seisin,  for  the  simple  reason  that  he  has  it  not  to  give, 
inasmuch  as  he  is  not  in  actual  possession  of  the  lands.  This 
however  is  subject  to  the  exception  that  the  reversioner  is  in  one 
sense  seised  when  the  particular  estate  is  only  a  lease  for  years  \ 
The  lessee  for  years  is,  as  has  been  said  above,  not  seised  of  the 
lands,  but  only  possessed  of  the  term.  Seisin,  as  has  been  seen, 
implies  (i)  actual  possession,  (2)  possession  as  of  freehold. 
Where  therefore  there  is  a  particular  estate  of  leasehold  tenure, 
the  reversioner,  if  he  can  obtain  the  consent  of  the  lessee  to 
eome  on  the  land  for  the  purpose,  can  pass  his  interest  by  feoff- 
ment, accompanied  by  livery  of  seisin.  In  this  case,  however,  he 
grants,  not  the  reversion,  but  the  freehold  in  possession. 

When  a  reversioner  desires,  not  to  grant  his  reversion  to  a 
third  person,  but  to  convey  it  to  the  person  who  already  has  the 
particular  estate,  he  is  said  to  release  the  reversion  I  This  he 
may  do  by  deed.  Supposing  therefore,  in  the  case  above  put,  A, 
tenant  of  the  reversion  in  fee,  should  execute  a  deed  releasing 
his  interest  to  tenant  in  tail,  tenant  for  life,  or  tenant  for  years, 
the  reversion  in  fee  would  coalesce  with  the  particular  estate  in 
tail,  for  life,  or  for  years.  This  coalescing  of  a  smaller  estate 
with  a  larger  is  called  merger,  the  rule  being  that  where  the 
same  person  becomes  entitled  to  two  estates,  the  one  of  which  is 
to  take  effect  in  possession  during  the  continuance  or  immediately 
♦on  the  determination  of  the  other,  the  smaller  one  is  merged  or 
swallowed  up  in  the  larger.  So  in  the  above  cases,  each  of  the 
tenants  in  possession,  tenant  in  tail,  tenant  for  life,  and  tenant 
for  years,  becomes  at  once  tenant  in  fee  simple  in  possession. 
The  same  effect  is  produced  by  the  surrender  of  the  particular 
estate  to  the  reversioner.  The  particular  estate  merges  in  the 
larger  reversionary  estate, 

^  See  above,  §  i. 

*  See  the  passage  from  Britton  quoted  above,  §  i.     The  word  '  release' 
is  the  proper  technical  expression  for  this  class  of  conveyances. 


1 88  Completion  of  the  Common  Law.         [chap.  v. 

Thus,  as  the  law  became  more  refined,  new  modes  of  convey- 
ing lands  from  one  person  to  another  were  introduced,  destined, 
with  some  modifications  to  be  hereafter  noticed,  to  supersede  in 
practice  the  old  feolfment,  fine,  and  recovery. 

If  A,  tenant  in  fee  simple,  wished  to  convey  the  lands  to  B, 
he  might  make  a  lease  to  him  of  the  lands  in  question,  upon 
which  B  would  enter,  and  was  then  at  once  capable  of  taking  a 
release  by  deed  of  the  reversion  in  fee  ^.  This  was  called  con- 
veyance by  lease  and  release,  and  became  in  later  times  the  usual 
mode  of  conveying  lands.  Its  later  history  will  be  noticed 
hereafter  ^. 

A  conveyance  of  the  reversion  might  also  be  made  to  a 
stranger.  In  this  case  it  was  formerly  necessary  that  the  tenant 
of  the  particular  estate,  whether  in  tail,  for  life,  or  for  years, 
should  attorn  to  the  grantee  of  the  reversion,  in  other  words, 
acknowledge  him  as  the  person  of  whom  the  lands  were  held. 
The  necessity  for  attornment  was  done  away  with  by  4  and  5 
Anne,  c.  16.  Thus  two  new  modes  of  conveying  the  immediate 
freehold  were  added,  lease  and  release,  and  grant  and  attornment. 

(2)  Remainders  {Vested  and  Contingent). 

The  other  kind  of  future  interests  which  can  arise  at  common 
law  in  freeholds  are  called  remainders.  A  remainder  differs 
from  a  reversion  in  this,  that  while  a  reversion  is  an  estate  of 
future  enjoyment  not  expressly  created  by,  but  resulting  from, 
the  alienation  of  a  '  particular '  estate,  a  remainder  is  created  by 
express  words  at  the  same  time  as  the  particular  estate,  and'  is 
so  limited  as  to  come  into  enjoyment  or  possession  so  soon  as 
the  particular  estate  comes  to  an  end.  In  Sir  Edward 
Coke's  words ',  a  remainder  is  '  a  remnant  of  an  estate  in  lands 
or  tenements,  expectant  on  a  pai'ticular  estate  created  together 
with  the  same  at  one  time.* 

As  has  been  seen,  a  tenure  exists  between  the  reversioner  and 

^  See  Littleton,  sect.  459.  *  See  Chapter  VII,  §  3. 

^  Coke  upon  Littleton,  143  a. 


§  3  (2).]  Remainders.  189 

the  tenant  of  the  particular  estate.  Tliis  is  not  the  case  as 
between  the  remainder-man  (or  person  to  whom  the  remainder 
is  given),  and  the  tenant  of  the  particular  estate. 

In  order  that  a  freehold  remainder  may  be  effectually  created 
at  common  law,  it  is  necessary  that  the  seisin  or  fi-eehold  posses- 
sion should  be  vested  in  the  grantee  of  the  particular  estate,  or, 
if  the  particular  estate  be  an  estate  for  years,  in  the  remainder- 
man, and  that  at  the  same  time  the  remainder  should  pass  to 
the  person  entitled  after  the  donee  of  the  particular  estate.  This 
was  a  consequence  of  the  great  importance  attached  to  the  pre- 
servation of  notoriety  as  to  the  person  entitled  to  the  freehold. 
Hence  it  was  that  the  doctrine  arose  that  a  freehold  interest  in 
possession  must  pass  instantly  from  donor  to  donee,  that,  as  it 
was  sometimes  expressed,  it  could  not  be  for  an  instant  in  abey- 
ance. The  only  mode  of  conveying  such  an  interest  was  by 
feoffment  with  livery  of  seisin,  or  by  the  fictitious  processes  of 
fine  or  recovery.  It  was  however  possible  for  the  tenant  in  fee 
simple,  in  making  a  grant,  to  divide  the  interest  which  passed 
from  him  among  two  or  more  persons,  so  that  one  should  take 
immediately  after  the  interest  of  the  other  came  to  an  end. 
There  must  be  no  interval  between  the  end  of  the  first  interest 
and  the  commencement  of  the  second  ;  the  instant  the  first  de- 
termines, the  second  begins.  Thus,  suppose  A,  tenant  in  fee 
simple,  makes  a  feoffment  accompanied  by  livery  of  seisin  to  B 
for  his  life,  and  after  the  termination  of  that  estate,  or  (more 
shortly)  with  remainder  to  C  and  the  heirs  of  his  body,  with  re- 
mainder to  D  and  his  heirs,  the  gift  would  operate  as  expressed, 
and  the  various  estates  come  into  enjoyment,  one  after  the  other, 
upon  the  determination  of  the  preceding  estate  in  each  case. 
The  ultimate  limitation  in  fee  is  of  course  liable  to  be  barred  or 
cut  off  by  the  tenant  in  tail  suffering  a  recoveiy.  On  the  other 
hand,  A  cannot,  at  common  law,  make  a  feoffment  to  B  for  life 
to  commence  in  point  of  enjoyment  at  any  future  period,  for 
instance,  the  day  after  to-morrow,  nor  can  he  provide  that  the 
remainder  limited  to  C  shall  take  effect  six  months  after  the 
death  of  B.     An  estate  in  remainder  must  come  into  possession 


190  Completion  of  the  Common  Law.        [chap.  v. 

or  enjojTnent  at  once,  as  soon  as  the  particular  estate  upon  which 
it  is  limited  comes  to  an  end. 

It  follows,  from  the  very  definition  of  a  remainder  above 
given,  that  so  soon  as  the  fee  simple  is  parted  with,  the  donor 
has  given  away  all  that  he  has  to  grant,  and  can  make  no 
ulterior  disposition.  A  remainder  limited  to  take  effect 
after  a  fee  simple  estate  is  simply  void.  Nor  is  the  case 
altered  when,  as  has  been  pointed  out  above,  the  estate  in  fee 
simple  is  liable  to  be  terminated  by  the  happening  of  some 
specified  event.  For  instance,  if  an  estate  be  granted  to  A  and 
his  heirs  so  long  as  he  continues  unmari-ied,  this  estate  will 
come  to  an  end  upon  A!s  marriage  ;  but  the  rule  that  a  re- 
mainder cannot  be  limited  after  a  fee  simple  would,  at  common 
law  ^,  prevent  the  settlor  from  making  any  ulterior  gift,  such  as 
'  and  from  and  after  the  marriage  oi  A  to  B  and  his  heirs.'  In 
like  manner  the  established  rule  that  the  benefit  of  a  condition 
can  only  be  reserved  in  favour  of  the  donor  or  his  heirs,  operated 
to  prevent  the  creation  of  any  ulterior  estate,  to  take  effect 
on  the  happening  of  any  future  event.  Though  a  person 
may,  on  making  a  gi-ant  of  lands,  reserve  to  himself  and  his 
heirs  a  right  of  re-entry  on  the  happening  of  any  specified  event, 
he  cannot  resei-ve  this  right  in  favour  of  a  stranger.  A  grants 
lands  to  B  and  his  heirs  on  condition  of  his  rendering  rent 
annually  ;  upon  non-payment,  A  enters  and  defeats  the  estate 
of  B.  But  such  a  condition  and  right  of  entry  cannot  be  re- 
served in  favour  of  C.  Thus  it  appears  that  the  only  mode  of 
creating  rights  of  future  enjoyment  in  freeholds  at  common  law 
is  by  way  of  remainder — a  remainder  being  confined  within  the 
limits  of  Sir.E.  Coke's  definition. 

The  doctrine  of  remainders  at  common  law  came  in  process  of 
time  to  be  subject  to  a  further  complication,  which  should  be 
noticed  here  ^.    Hitherto  remainders  have  been  treated  as  present 

*  See  FearDe  on  Contingent  Remainders,  p.  12.  The  eniplo3rment  of  uses, 
both  before  and  after  the  Statute  of  Uses,  to  create  interests  of  this 
character,  will  be  explained  hereafter.     (See  Chaps.  VI  and  VII.) 

*  The  history  of  contingent  remainders  is  obscure.  It  seems  from  the  case 


§  3  (2).]  Remainders.  iqi 

or  vested  interests  wliere  the  enjoyment  is  postponed  till  the 
lapse  of  a  certain  specified  time  or  the  happening  of  some 
specified  event.  A  distinction  subsequently  arose  between  re- 
mainders whei-e  an  estate  of  future  enjoyment  was  given  to  a 
definite  existing  person  upon  an  event  certain  to  happen,  and 
where  an  estate  of  future  enjoyment  was  created  in  favour  of  a 
person  not  existing,  or  not  ascertained,  or  was  to  come  into 
effect  upon  an  event  which  might  or  might  not  happen.  In  the 
former  case  the  remainder  is  said  to  be  vested,  in  the  latter  it  is 
said  to  be  contingent. 

In  the  case  of  a  vested  remainder  nothing  interferes  with  the 
enjoyment  of  the  remainder-man,  except  the  fact  that  the  pro- 
perty is  in  the  hands  of  the  tenant  of  the  particular  estate.  All 
that  has  to  happen,  in  order  that  the  remainder-man  may  come 
into  enjoyment  of  the  property,  is  the  termination  of  the  parti- 
cular estate.  Of  course  it  may  be  that  the  person  entitled  to 
the  remainder  may  as  a  fact  never  come  into  the  enjoyment  of 
the  property,  as,  for  instance,  where  lands  are  given  to  A  for 
life,  remainder  to  B  for  life,  and  B  dies  before  A,  but  this  does 
not  affect  the  fact  that  B's  interest,  so  long  as  it  exists,  is  a 
vested  remainder^. 

On  the  other  hand,  in  the  case  of  a  contingent  remainder,  some- 
thing must  happen  besides  the  determination  of  the  pai'ticular 

in  the  Liber  Assisarum  given  below,  that  in  one  form  they  were  recognised 
as  early  as  the  reign  of  Edward  III.  However,  the  passage  from  Little- 
ton (sect.  720,  etc.),  and  the  cases  in  the  Year  Books  referred  to  by  Mr. 
Joshua  "W^illiams  (Principles  of  Real  Property,  pp.  255,  256),  show  that  their 
recognition  was  not  firmly  established  till  a  later  period.  It  seems  however 
convenient  to  give  a  sketch  of  the  general  rules  relating  to  contingent  re- 
mainders in  this  place. 

1  'It  is  not  the  uncertainty  of  ever  taking  effect  in  possession  that  makes 
a  remainder  contingent ;  for  to  that,  every  remainder  for  life  or  in  tail  is 
and  must  be  liable ;  as  the  remainder-man  may  die,  or  die  without  issue  before 
the  death  of  the  tenant  for  life.  The  present  capacity  of  taking  effect  in 
possession,  if  the  possession  were  to  become  vacant,  and  not  the  certainty 
that  the  possession  will  become  vacant  before  the  estate  limited  in  re- 
mainder determines,  universally  distinguishes  a  vested  remainder  from  one 
that  is  contingent.'     (Fearne  on  Contingent  Eemainders,  p.  216.) 


192  Completion  of  the  Common  Law.         [chap.  v. 

estate  before  the  interest  created  can  come  into  actual  enjoy- 
ment.    If  the  remainder  be  limited  to  a  person  unborn  or  not 
ascertained,  as,  for  instance,  if  lands  be  given  to  A  for  life,  re- 
mainder to  the  unborn  son  of  j8  in  tail,  in  order  that  the  con- 
tingent remainder  may  take  effect,  B  must  have  a  son  born,  or 
at  least  begotten  ^  in  the  lifetime  oi  A.    So  soon  as  this  happens, 
the  remainder  vests  in  the  son  of  B.     In  other  words,  the  future 
interest,  which  before  was  a  contingent,  now  becomes  a  vested  re- 
mainder.    So  if  lands  are  given  to  A,  remainder  to  the  heirs  of 
^^,  B  must  die  in  A^s  lifetime,  for  nemo  est  haeres  viventis;  and 
if  B  survives  A  for   ever  so  short  an   interval,  his  heir  will 
never  take,  otherwise  there  would  be  a   period  during  which 
the  fi-eehold  would  be  in  abeyance.     So  if  lands  are  given  to  A 
and  B  jointly  for  life,  remainder  to  the  survivor  in  fee,  so  soon 
as  one  dies,  the  contingent  remainder  which  the  other  had  is 
turned  into  a  vested  remainder,  which  again  by  the  operation  of 
the  doctrine  of  merger  coalesces  with  the  life  estate ',  and  the 
survivor  becomes   entitled  to  an   estate  in  fee  simple  in  pos- 
session.    So  again,  if  lands  be  given  to  A  till  C  returns  from 
Rome,  then  to  B  and  his  heirs,  this  is  a  contingent  remainder  *, 
for  the  estate  upon  which  the  expectant  interest  is  limited  to 
take  effect,  is  determinable  on  an  event  which  may  never  happen. 
On  the  other  hand,  if  the  interest  were  expressed  to  take  effect 
after  the  death  of  A  or  upon  Cs  return  from  Rome,  whichever 
might  first  happen,  the  estate  would  be  a  vested  remainder,  for 
it  is  certain  that  A  will  die. 

The  principles  above  laid  down  will  suffice  to  explain  the  rule 

^  See  Williams  on  Real  Property,  p.  262,  and  Stat.  10  and  11  WUl.  Ill, 
c.  16. 

*  This  seems  to  have  been  the  earliest  form  in  which  contingent  re- 
mainders were  recognised.     See  the  case  from  30  Lib.  Ass.  below. 

'  As  to  'merger'  see  above,  p.  187. 

*  See  Butler's  note  ^  to  the  eighth  edition  of  Feame's  Contingent  Re- 
mainders, p.  13.  Observe  that  in  this  case,  there  being  no  words  of  inhe- 
ritance (see  above,  p.  50),  A's  interest  is  only  a  life  interest,  and  there- 
fore there  is  nothing  to  prevent  the  estate  Kniited  to  come  into  effect  after 
the  happening  of  the  condition,  being  a  remainder  within  Sir  E.  Coke's 
definition. 


§  o  (2).]  Conthigent  Remainders.  193 

which  prevails  in  the  case  of  contingent  remainders,  that  inas- 
much as  the  freehold  can  never  be  in  abeyance,  '  every  contingent 
remainder  of  an  estate  of  freehold  must  have  a  particular  estate 
of  freehold  to  support  it.'  Thus  not  only  must  eveiy  contingent 
remainder  of  a  freehold  be  ready  to  vest,  that  is  to  become  a  com- 
plete right  either  of  present  or  of  future  enjoyment  (an  estate  in 
possession  or  a  vested  i-emainder)  so  soon  as  the  preceding  estate 
comes  to  an  end,  but  that  preceding  estate  must  itself,  at  common 
law,  be  an  estate  of  freehold.  Lands  cannot,  at  common  law,  be 
given  to  A  for  ten  years,  remainder  to  the  unborn  son  of  B  \ 

The  subjoined  passage  from  Littleton  shows  that  in  his  time 
the  doctrine  of  contingent  remainders  was  not  firmly  established. 
It  cannot  be  said  that  in  the  above  cases  '  the  remainder  is  in 
him  to  whom  the  remainder  is  entailed,  before  livery  of  seisin  is 
made  to  him  that  has  the  freehold.'  No  doubt  in  the  case  of  a 
gift  to  B,  remainder  to  the  heirs  of  C,  the  person  who  is  the  heir 
presumptive  or  apparent,  that  is  who  would  be  the  heir  if  the 
ancestor  were  to  die  at  once,  has  a  chance,  or  possibility,  or  ex- 
pectation of  the  right  becoming  his,  but  it  is  not  such  a  right 
as  the  law  regards  as  vested,  that  is  as  completely  created,  for  it 
is  wanting  in  the  main  essentials  of  a  vested  or  completely 
created  right,  namely  a  determinate  person  who  is  to  take  it. 

Contingent  remainders  may  be  created  in  favour  of  unborn 
persons,  provided  only  that  the  person  who  is  to  take  the  estate 
comes  into  existence  before  the  preceding  particular  estate  comes 
to  an  end.  So  soon  as  the  designated  person  is  born,  the  estate 
vests  in  him.  Thus  an  estate  might  be  given  by  way  of  re- 
mainder to  an  unborn  person  for  life  or  in  tail,  subject  only  to 
the  rule  that  no  interest  could  be  given  to  the  unborn  child  of  an 
unborn  person  ^.  For  instance,  if  an  estate  be  given  to  A  for  life, 
remainder  to  his  unborn  son  in  tail,  remainder  to  C  in  fee,  the 

1  See  Williamson  Real  Property,  p.  261. 

*  See  Fearne's  Contingent  Remainders,  p.   502.    This  rule,  which  has 
long  been  firmly  established,  has  taken  the  place  of,  and  perhaps  may  be 
historically  traced  to,  the  somewhat  unintelligible  doctrine  laid  down  by  Sir- 
E.  Coke,  that  a  possibility  upon  a  possibility  is  never  admitted  by  intend- 
ment of  law.     See  Williams  on  Real  Property,  p.  265. 

0 


1 94  Comjjletion  of  the  Common  Law.  [chap.  v. 

first  remainder  is  contingent,  that  is,  it  does  not  become  a  com- 
pletely vested  interest,  for  the  reason  above  given,  till  A  has  a 
son  born.  So  soon  as  this  happens  the  interest  is  no  longer  con- 
tingent, but  vested  or  complete,  and  the  son  of  A  has  a  vested 
remainder  in  tail,  an  interest  which  is  ready  to  come  into  pos- 
session or  enjoyment  so  soon  as  A's  life  estate  determines.  On 
the  other  hand,  C  has  an  interest  which  is  vested  or  complete 
from  the  moment  of  its  creation. 

Now  if,  before  A  has  a  son  born,  his  life  estate  determines  by 
death,  forfeiture,  or  otherwise,  or  if  he  acquire  the  fee  by  taking 
a  conveyance  from  0  of  his  interest,  in  which  case  before  the  birth 
of  a  son  his  life  estate  would  merge  or  become  united  to  or  lost  in 
the  fee  simple,  or  if  before  the  same  event  he  convey  his  life  in- 
terest to  C,  in  all  the  above  cases  the  contingent  remainder  would, 
as  the  law  formerly  stood,  have  been  destroyed,  and  no  after-born 
son  of  A  would  take  any  interest  at  all.  This  liability  to  be 
destroyed  by  the  happening  of  any  of  the  above  events  was  the 
great  characteristic  of  contingent  remainders,  and  the  ingenuity 
of  conveyancers  was  exercised  to  prevent  so  inconvenient  a  result. 
A  recent  change  in  the  law  has  removed  the  liability  to  de- 
struction to  which  contingent  remainders  were  subject  by  reason 
of  the  forfeiture,  surrender,  or  merger  o  any  preceding  estate 
of  freehold  ^ 

The  same  act  renders  contingent  remainders  alienable  inter 
vivos^.  Formerly  the  chance  or  contingency  was  not  considered 
an  appropriate  subject  of  alienation  inter  vivos,  though  it  fell 
within  the  rights  capable  of  being  disposed  of  by  will.  At  the 
present  day,  if  lands  are  given  to  A  for  life,  remainder,  if  C 
be  living  at  his  decease,  to  B  and  his  heirs,  B  may  dispose  of 
his  contingent  interest  during  the  lives  of  A  and  C  by  alienation 
inter  vivos,  or  by  will  ^,  or,  upon  his  decease  intestate,  the  contin- 
gent remainder  will  descend  to  his  heir  *. 

»  8  and  9  Vic.  c.  io6.  s.  8.  *  ggct.  6. 

*  Fearne,  Contingent  Remainders,  366,  note.      7  Will.  IV  and  i   Vic. 
c.  26.  s.  3. 

*  3  and  4  Will.  IV,  c.  106.  s.  i. 


§  3  (2).]  Contingent  Remainders.  195 

There  is  one  rule  of  construction  of  great  technicality,  but  at 
the  same  time  of  much  practical  importance,  which  should  be 
noticed  in  connection  with  the  doctrine  of  remainders.  It  has 
been  seen  that  in  a  grant  to  A  and  his  heirs,  or  to  A  and  the 
heirs  of  his  body,  the  words  '  heirs,'  '  heirs  of  his  body,'  or  their 
equivalents,  are  words  of  limitation  and  not  of  purchase^;  they 
are  merely  descriptive  of  the  estate  taken  by  A,  and  do  not 
express  that  any  estate  is  conveyed  to  A's  heir.  The  same  rule 
applies  although  the  words  of  the  gi-ant  may  appear  to  convey 
expressly  an  estate  to  the  heirs  by  way  of  remainder.  Thus,  if 
a  gift  be  made  to  A  and  after  his  decease  to  his  heirs,  or  to  A 
for  life  and  after  his  decease  to  B  for  life  (or  to  B  and  the  heirs 
of  his  body),  with  an  ultimate  remainder  to  the  heirs  of  A,  the 
above  rule  operates  to  prevent  the  vesting  of  any  estate  in  the 
heir  directly  by  the  gift ;  A  (hi  the  last  case)  has  two  estates, 
one  for  life  in  possession,  the  other  in  fee  in  remainder; 
if  the  intermediate  estate  of  B  be  taken  away,  merger  ^  takes 
place,  and  A  becomes  tenant  in  fee  in  possession.  This  doctrine 
is  known  by  the  name  of  the  'rule  in  Shelley's  case^',  and  may 
be  stated  as  follows  : — Wherever  there  is  a  limitation  to  a  man 
which  if  it  stood  alone  would  convey  to  him  a  '  particular  '  estate 
of  freehold,  followed  by  a  limitation  to  his  heirs  or  to  the  heirs 
of  his  body  (or  equivalent  expressions)  either  immediately,  or 
after  the  interposition  of  one  or  more  other  particular  estates, 
the  apparent  gift  to  the  heirs  or  heirs  of  the  body  is  to  be 
construed  as  a  limitation  of  the  estate  of  the  ancestor,  and  not 
a  gift  to  his  heir  *. 

The  conception  of  a  'remainder'  is  probably  peculiar  to  English 
law,  and  is  closely  connected  with  the  notion  of  estate  and  tenure. 
The  tenant  of  lands  has  not  the  full  property,  but  only  an 
estate  or  interest  of  greater  or  less  extent  or  duration.  An 
estate  in  fee  simple  is  considered  as  an  aggregate  out  of  which 

^  See  above,  pp.  115,  176.  *  See  above,  p.  187. 

^  See  Williams  on  Real  Property,  p.  245. 

*  See  Littleton,  sect.  719,  Coke's  Commentary,  ad  loc.,  and  Williams 
on  Real  Property,  pp.  245-249. 

O  3 


195  Completion  of  the  Common  Law.  [chap.  v. 

any  number  of  smaller  estates  may  be  derived  or  carved  ;  so  long 
as  the  fee  simple  itself  is' not  parted  with,  it  is  retained  as  a  pre- 
sent interest  or  right,  though  the  enjoyment  or  possession  of  it 
is  postponed.     So  the  interests  which  are  parted  with  are  re- 
garded as   present   rights    postponed   in   point    of   enjoyment. 
Koman  law  did  not  admit  of  the  simultaneous  existence  in  dif- 
ferent persons  of  separate  rights  of  future  and  present  enjoy- 
ment over  the  same  subject-matter,  except  perhaps  in  the  case  of 
dominium,  and  the  so-called  jura   in   re  aliena   {ususfructus 
emphyteusis,  etc.).    Where  these  rights  existed,   the  interest  of 
the  dominus  was  closely  analogous  to  an  English  reversion.     In 
French  law,  as  it  stood  before  the  Code  Napoleon,  and  in  the 
systems  derived  from  it  (e.g.  the  law  of  Lower  Canada),  it  is 
possible  to  create  future  interests  by  way  of  substitution.      A 
thing  may  be  given  i^iter  vivos  of  by  will  to  A,  subject  to  a  con- 
dition that  he  should  on  the  happening  of  a  specified  event,  as 
for  instance  at  his  own  decease,  hand  it  over  to  B.     In  this 
case  a  substitution  is  created  in  favour  of  B.     A  is  regarded  as 
the  complete  proprietor,  subject  only  to  the  charge  of  handing 
over  the  thing  to  B  and  to  all  that  is  involved  in  it,  for  instance, 
he  may  not  alienate,  charge,  or  destroy  the  thing  which  is  the 
subject  of  the  substitution.       B,   on   the  other   hand,  has    no 
present  right,  he  has  merely  the  hope  or  expectation  of  becom- 
ing the  proprietor  of  the  thing  if  he  survives  A.      If  he  die, 
living  A,  nothing  passes  to  his  heirs  ;    but  if  he  survives  A,  he 
becomes  upon  A's  death  full  proprietor.     The  doctrine  of  sub- 
stitutions formed  a  large  and  important   chapter  in  the  early 
French  law,  but  were  wholly  abolished  by  the  Code  Napoleon, 
Article  896  \ 

'  See  some  excellent  observations  on  the  English  conception  of  an 
'estate'  and  its  consequences  in  Markby's  Elements  of  Law,  p.  154;  and 
see  Pothier,  Traits  des  Substitutions,  artt.  1-6.  _ 


^3-]  AittJiorities.  197 


Brooke's  Abridgment^  Done  and  Bemainder,  §  2. 

Translation. 

30  Liber  Assisarum^  p.   47.     H.  was  seised  of  tenements 
in  "Winchester  devisable  by  will  by  custom  ^  where  there  is  also 
a  custom  that  he  who  is  seised  by  devise  cannot  make  alienation 
by  warranty  or  otherwise  which  shall  be  a  bar  to  the  remainder- 
man or  reversioner.     H.  devised  to  Alice  his  wife  for  term  of 
life,  remainder  to  Thomas  his  son  for  term  of  life,  so  that  the 
said  Thomas  should  make  no  gift  or  alienation  so  as  to  bar  the 
remainder  to  the   nearer   heirs   of  the   blood  of   the    children 
{frofinquionhus  haeredibus  de  sangtdne  puerorum)  of  the  said 
H.  after  the  death  of  the  said  Thomas.     And  H.  had  also  issue 
]\Iaud  (who  had  issue  Isabel),   and  Edmund  elder  brother  of 
Thomas.     And  tlien  H.  the  devisor  died,  and  afterwards  E.  the 
elder  son  died   without  issue,     Alice  the    mother   entered    by 
the    devise    and    died    seised,   and  then  Thomas    entei-ed   and 
aliened  in  fee  with  warranty  to  the  tenant  in  the  assize  *,  and 
Maud  died.     And  Isabel  her  daughter,  plaintiff  in  the  assize, 
made  claim,  and  took  the  door  of  the  messuage  now  in  demand 
into  her  hands  by  the  hasp  ^      And  Thomas  afterwards  died 
without  issu-e,  and  Isabel  entered  upon  the  alienee,  and  he  ousted 
her,  and  she  brings  the  assize,  and  it  is  said  that  those  who  are 
the  heirs  of  H.  shall  not  have  the  remainder  by  force  of  the 
words  propinquioribus  haeredibus  de  sawjuine  p>uerorum'^ ,  for  it 
is  not  limited  to  his  heirs,  but  to  the  next  in  blood  of  his  children, 
so  that  his  children  themselves  shall  not  have  the  land  by  the 
remainder,  but  the  children  of  the  children. 

(  Wilby.)     A  man  leased  to  A  for  term  of  life,  remainder  to  his 


*  Brooke's  Abridgment  is  a  compilation  and  arrangement  of  the  ca«es 
reported  in  the  Year  Books  and  early  Keports,  and  was  published  in  the 
year  1568  ;   Reeves,  iii.  814. 

-  A  volume  of  reports  of  the  reign  of  Edward  III,  numbered  according 
to  the  year  of  the  reign. 

*  See  above,  p.  39. 

*  i.  e.  the  defendant. 

'^  As  to  '  continual  claim '  and  its  effect  in  preserving  to  the  person  dis- 
seised the  right  of  actual  entry,  see  Littleton,  lib.  iii.  c.  7.  8.  414. 

*  And  therefore  that  the  defendant,  alienee  of  Thomas,  had  do  title, 
although  Thomas  was  the  heir  of  the  heir  of  H. 


J  98  Completion  of  the  Common  Law.  [chap.  v. 

next  of  blood,  and  had  issue  two  sons  ;  the  elder  has  issue  and 
dies,  tenant  for  life  dies,  tlie  younger  brother  shall  have  the  land 
and  not  the  issue  of  the  elder  brother,  for  the  younger  brother  is 
nearer  of  blood  to  his  father  the  devisor  than  is  the  sou  of  the 
elder  son,  for  the  one  is  his  own  son,  and  the  other  is  only  the 
son  of  his  son,  and  yet  the  son  of  his  elder  son  is  his  heir,  but 
not  his  next  of  blood. 

(Seaton.)  If  H.  had  had  many  sons  and  daughters  who  had 
issue  and  died,  the  remainder  vests  in  the  heir  of  each  of  the 
children  of  H.,  since  he  is  proximus  etc.  de  sanguine  puerorum, 
which  extends  to  the  heirs  of  all  the  children  of  H. ;  but  if  the 
daughter  of  H.  had  issue  when  the  tenant  for  life  died  and  the 
son  of  H.  had  no  issue  at  that  time,  the  issue  of  the  daughter  of 
H.  shall  have  the  remainder  of  the  whole  ;  and  notwithstanding 
the  son  of  H.  should  have  issue  afterwards,  that  issue  should  have 
nothing,  for  it  was  vested  in  the  other  before,  and  he  in  whom 
the  remainder  vests  when  it  falls  retains  it.  It  is  otherwise  in 
the  case  of  a  descent,  as  where  there  is  a  descent  to  a  daughter, 
and  afterwards  a  son  is  born,  the  son  ousts  the  daughter.  With 
a  remainder  it  is  different. 

(Finchede^i.)  If  land  be  leased  for  term  of  life,  remainder  to 
the  right  heirs  of  J.  and  N.\  and  then  J.  have  issue  and  die,  and 
then  tenant  for  life  dies  and  the  heir  of  J.  enter,  and  then  N. 
die,  the  heir  of  N.  shall  have  nothing,  because  he  was  not  the 
heir  when  the  remainder  fell. 

(Fish.)  If  there  be  brother  and  sister,  and  the  land  be  leased 
for  term  of  life,  remainder  to  the  right  heirs  of  the  brother,  and 
he  die,  and  the  tenant  for  life  dies,  the  sister  enters,  and  then 
the  wife  of  the  brother  is  delivered  of  a  son  begotten  by  the 
brother  in  his  lifetime,  the  son  shall  not  have  the  land,  but  the 
sister,  who  is  aunt  to  him,  shall  retain  it,  because  the  land  was 
vested  in  her  before,  since  where  a  remainder  or  any  other  pur- 
chase vests  in  any  person  it  shall  continue  in  such  person. 

And  then  the  assize  was  awarded.  And  so  observe  that  by 
this  award  the  daughter  of  the  daughter,  plaintiff  in  the  assize, 
shall  have  the  remainder,  and  not  the  alienee  of  T.,  since  the  re- 
mainder never  vested  in  T.  as  heir  of  E.,  who  was  heir  of  H.  the 
devisor ;  for  it  was  said  that  by  those  words — to  the  next  iu 
blood  of    his  children — that    the    child   himself    should    take 

'  It  will  be  observed  that  this  is  a  contingent  remainder.  Nemo  est  haeres 
viventis.  These  words  are  sufficient  to  convey  in  the  case  in  the  text  an 
estate  in  fee  to  the  heir  of  J. 


§  3-]  Aidhorities.  199 

nothing,  but  another  of  the  blood  of  the  same  child  whichever 
be  nearer,  and  the  plaintiff  recovered  by  the  award :  quod 
nota. 

Littleton's  Tenures,  lib.  iii.  c.  13.  sect.  720.  Item  jeo 
ay  oye  dit,  que  en  temps  le  Roy  Richard  le  second,  il  y  fuist  uu 
Justice  de  le  Comen  Banke,  demurrant  en  Kent,  appelle  Rykhill, 
qui  avoit  issue  divers  fitz,  et  son  entent  fuist,  que  son  eisne  fitz 
averoit  certeyn  terres  et  tenementes  a  luy,  et  a  les  heires  de  son 
corps  engendres,  et  pur  defaute  dissue,  le  remeyudre  a  le  second 
fitz,  etc.,  et  issint  a  le  tierce  fitz,  etc.,  et  pur  ceo  quil  voille  que 
nul  de  ses  fitz  alieneroit  ou  ferroit  garrauntie  pur  barrer  ou  leder 
les  autres  qucux  serront  en  le  remeyndre,  etc.,  il  fist  faire  tiel  en- 
denture  a  tiel  effecte,  scil.  que  les  terres-  et  tenementes  furent 
dones  a  son  eisne  fitz  sur  tiel  condicion,  que  si  leisne  fitz 
alieuast  en  fee,  ou  en  fee  taille,  etc.,  ou  si  ascuu  de  ses  fitz 
alienast,  etc.,  que  adonques  lour  estate  cessera  et  serroit  voyde,  et 
que  adonques  mesmes  les  terres  et  tenementes  immediate  remeyn- 
dront  a  le  second  fitz,  et  a  les  heires  de  son  corps  engendres 
etc.,  sur  mesme  la  condicion,  scil.  que  si  le  ii  fitz  alienast  etc., 
que  adonques  son  estate  cessera,  et  que  adonques  mesmes  les 
terres  et  tenementes  immediat  remeyndront  al  tierce  fitz  et  a  les 
heires  des  son  corps  engendres,  et  sic  ultra,  le  remeyndre  as 
autres  de  ses  fitz,  et  lyvere  de  seisin  fuist  fait  accordant. 

Sect.  721.  Mais  il  semble  per  reason  que  toutes  tielx  re- 
meyndres  en  la  fourme  avauntdit  faitez  sount  voides  et  de  nul 
value,  et  ceo  pur  trois  causes,  line  cause  est,  pur  ceo  que  chescun 
remeyndre  que  commence  par  un  fait,  il  covient  que  le  remeyndre 
soit  en  luy  a  qui  le  remeyndre  est  taill^  per  force  de  mesme  le 
faits  quant  ^  le  lyvere  de  seisin  est  fait  a  luy  qui  avera  le  frank- 
tenement,  car  en  tiel  case  le  nessance  et  le  estre  de  le  remeyndre 
est  per  le  lyvere  de  seisin  a  celuy  qui  avera  Ic  franktencment,  et 
tiel  remeyndre  ne  fuist  al  second  fitz,  al  temps  de  lyvere  de 
seisin  en  le  cas  avauntdit,  etc. 

Sect.  722.  La  seconde  cause  est,  si  le  primier  fitz  alienast  les 
tenementes  en  fee,  donques  est  le  franktenement,  et  le  fee  simple 
en  lalien^,  et  en  nul  autre,  et  si  le  donour  avoit  ascun  reversion, 
par  tiel  alicnacion,  la  revercion  est  discontinue  ;  donques  comeut 
per  ascun  reason  poet  estre,  que  tiel  remainder  commencera  son 

1  A  later  reading  generally  adopted  is  '  avant.'  See  Sir  E.  Coke's 
translation. 


200  Completion  of  the  Common  Law.  [chap.  v. 

estre  et  sa  nessance  immediate  apres  tiel  alienacion  fait  a  un 
estraunge,  qui  ad  per  mesme  lalienacion  franktenement,  et  fee 
simple  %  Et  auxi  si  tiel  remeyndre  serroit  bon,  adonques  purroit 
il  entrer  sur  lalien^,  lou  il  navoit  ascun  manere  de  droit  avant 
lalienacion,  que  serroit  inconvenient. 

Sect.  723.  La  tierce  cause  est,  quant  la  condicion  est  tiel,  que 
si  leisne  fitz  alienast,  etc.,  que  son  estate  cessera  ou  serroit  voyde, 
etc.,  donques  apres  tiel  alienacion,  etc.  poet  le  donour  entrer  per 
force  de  tiel  condicion  etc.,  comme  il  semble,  et  issint  le  donour 
et  ses  lieires  en  tiel  cas  doient  pluis  tost  aver  la  terre  que  le 
second  fitz,  qui  navoit  ascun  droit  devant  tiel  alienacion,  etc. ;  et 
issint  il  semble  que  tielz  remeyndres  en  le  cas  avauntdit  sont 
voydes. 

Sir  E.  Coke's  Translation. 

Sect.  720.  Also,  I  have  heard  say,  that  in  the  time  of  King 
Richard  the  Second  there  was  a  justice  of  the  Common  Place 
dwelling  in  Kent,  called  Richel,  who  had  issue  divers  sons,  and 
his  intent  was,  that  his  eldest  son  should  have  certain  lands  and 
tenements  to  him,  and  to  the  heirs  of  his  body  begotten  ;  and  for 
default  of  issue,  the  remainder  to  the  second  son,  and  so  to 
the  third  son  :  and  because  he  would  that  none  of  his  sons 
should  alien  or  make  Avarranty  to  bar  or  hurt  the  others  that 
should  be  in  the  remainder,  he  causeth  an  indenture  to  be 
made  to  this  effect,  viz.  that  the  lands  and  tenements  Avere  given 
to  his  eldest  son  upon  such  condition,  that  if  the  eldest  son  alien 
in  fee,  or  in  fee  tail,  or  if  any  of  his  sons  alien,  that  then 
their  estate  should  cease  and  be  void,  and  that  then  the  same 
lands  and  tenements  immediately  should  remain  to  his  second 
son  and  to  the  heirs  of  his  body  begotten,  et  sic  ultra,  the  re- 
mainder to  his  other  sons,  and  lively  of  seisin  was  made 
accordingly. 

Sect.  721.  But  it  seemeth  by  reason  that  all  such  remainders 
in  the  form  aforesaid  are  void  and  of  no  value,  and  that  for  three 
causes.  One  cause  is,  for  that  every  remainder  which  beginneth 
by  a  deed  it  behoveth  that  the  remainder  be  in  him  to  Avhom  the 
remainder  is  entailed  by  force  of  the  same  deed,  before  the  livery 
of  seisin  is  made  to  him  that  shall  have  the  freehold  ^ ;  for  in  such 

*  This  however  is  contrary  to  the  authority  of  the  case  given  above. 
According  to  this  doctrine,  no  contingent  remainder,  such  as  is  created  by  a 
grant  to  A  for  life,  remainder  to  the  heir  of  B,  could  be  created. 


§  4-]     Joint  TenanU,  Tenants  in  Commotio  Coparceners.     201 

case  the  growing  and  the  being  of  the  remainder  is  by  the  livery 
of  seisin  to  him  that  shall  have  the  freehold,  and  such  remainder 
was  not  to  the  second  son  at  the  time  of  the  livery  of  seisin  in 
the  case  aforesaid. 

Sect.  722.  The  second  cause  is,  if  the  first  son  alien  tlie  tene- 
ments in  fee,  then  is  the  freehold  and  the  fee  simple  in  the  alienee, 
and  in  none  other ;  and  if  the  donor  had  any  reversion,  by  such 
alienation  the  reversion  is  discontinued  :  then  how  by  any  reason 
may  it  be  that  such  remainder  shall  commence  his  being  and  his 
growing  immediately  after  such  alienation  made  to  a  stranger, 
that  hath  by  the  same  alienation  a  freehold  and  fee  simple  1 
And  also  if  such  remainder  should  be  good,  then  might  he  enter 
upon  the  alienee,  where  he  had  no  manner  of  right  before  the 
alienation,  which  should  be  inconvenient. 

Sect.  723.  The  third  cause  is,  when  the  condition  is  sucli, 
that  if  the  elder  son  alien,  that  his  estate  shall  cease  or  be 
void,  then  after  such  alienation  may  the  donor  enter  by 
force  of  such  condition,  as  it  seemeth  ^ ;  and  so  the  donor  or  his 
heirs  in  such  case  ought  sooner  to  have  the  land  than  the  second 
son,  that  had  not  any  right  before  such  alienation  ;  and  so  it 
seemeth  that  such  remainders  in  the  case  aforesaid  are  void. 

§  4.  Joint  Tenants,  Tenants  in  Common,  Co2)arceners. 

Another  class  of  rights  which  attained  greater  precision 
during  the  interval  under  consideration,  and  assumed  the  cha- 
racteristics which  they  have  possessed  ever  since,  are  those  which 
are  enjoyed  by  two  or  more  persons  who  are  simultaneously 
entitled  to  riglits  of  pi'operty  over  the  same  piece  of  land.  From 
the  earliest  times  it  must  have  been  common  for  two  or  more 
persons  to  liave  undivided  interests  of  some  kind  in  land  ^.     By 

*  It  is  an  inflexible  rule  of  common  law  that  the  benefit  of  a  condition 
can  only  be  reserved  in  favour  of  the  donor  or  his  heirs.  A  cannot,  in  a 
lease  to  B,  impose  a  condition  that  on  non-pajTnent  of  rent  C  may  enter. 

*  In  Bracton  the  general  term  '  participes '  is  applied  to  such  persons 
under  whatever  title  they  hold  (fol.  4:8  ;  Reeves,  i.  p.  447).  It  was  said 
of  such  a  tenant  'totum  tenet  et  nihil  tenet,  scUicet  totum  in  commuiii  et 
nihil  separatim  per  se.'  In  the  Statute  34  Edward  I,  stat.  i,  certain  provi- 
sions are  made  '  de  conjunctim  feoffatis,'  providing  for  the  case  where  a 
tenant  in  an  assize  of  novel  disseisin  pleaded  that  another  was  seised  jointly 
with  him. 


202  Comj)letion  of  the  Common  Law.  [chap.  v. 

tlie  time  of  Littleton  three  kinds  of  undivided  ownership  had 
come  to  be  distinguished  as  having  different  attributes.  These 
are  ^oint  tenants,  tenants  in  comvion,  coparceners.  The  main 
characteristics  of  this  class  of  rights  will  sufficiently  appear  from 
the  subjoined  extracts.  Tlie  point  of  resemblance  between  them 
is  that  the  co-owners  have  no  separate  estate  or  interest  in  any 
distinct  portion  of  the  land  over  which  they  have  simultaneously 
rights  of  property,  they  are  each  interested,  according  to  the 
extent  of  their  share,  in  every  part  of  the  whole  land  and  its 
proceeds. 

Littleton's  Tenures \  lib.  iii.  c.  3.  s,  277.  Joint  tenants  are, 
as  if  a  man  be  seised  of  certain  lands  or  tenements,  and  infeoffeth'^ 
two,  three,  four,  or  more,  to  have  and  to  hold  to  them  for  term  of 
their  lives,  or  for  term  of  another's  life,  by  force  of  which  feoff- 
ment or  lease  they  are  seised  ;  these  are  joint  tenants. 

Sect.  280.  And  it  is  to  be  understood,  that  the  nature  of  joint 
tenancy  is,  that  he  which  surviveth  shall  have  only  the  entire 
tenancy  according  to  such  estate  as  he  hath,  if  the  jointure  be 
continued.  As  if  three  joint  tenants  be  in  fee  simple,  and  the 
one  hath  issue  and  dieth,  yet  they  which  survive  shall  have  the 
whole  tenements,  and  the  issue  shall  have  nothing  ^.  And  if  the 
second  joint  tenant  hath  issue  and  die,  yet  the  third  which  sur- 
viveth shall  have  the  whole  tenements  to  him  and  to  his  heirs 
for  ever.  But  otherwise  it  is  of  parceners ;  for  if  three  parce- 
ners be,  and  before  any  partition  made  the  one  hath  issue  and 
dieth,  that  which  to  him  belongeth  shall  descend  to  his  issue. 
And  if  such  parcener  die  without  issue,  that  which  belongs  to 

'  The  extracts  from  Littleton's  text  given  above  are  sufficient  as  speci- 
mens of  the  language  in  which  he  wrote.  The  following  extracts  are  from 
Sir  E.  Coke's  translation. 

^  Joint  tenants  differ  from  parceners  or  coparceners  in  the  moile  in 
which  their  interest  is  created.  Joint  tenancy  must  commence  in  conse- 
quence of  alienation  inter  vivos  or  by  will,  an  estate  in  coparcenary  arises 
by  devolution  ah  intestato  to  daughters,  sisters,  etc,  or  sons  in  gavelkind 
tenure.  All  the  joint  tenants  must  owe  their  estate  to  the  same  title,  that 
is,  the  feoffment  or  other  instrument  of  alienation  must  operate  to  convey  a 
coextensive  interest,  at  the  same  time,  to  all  the  joint  tenants.  See  Black- 
stone,  ii.  180. 

^  This  is  the  essential  characteristic  of  joint  tenancy,  distinguishing  it  both 
from  coparcenary  and  from  tenancy  in  common. 


§  4-]     Joint  Tenants^  Tenants  in  Common,  Coparceners.     203 

her  shall  descend  to  her  co-heirs,  so  as  they  shall  have  this  by 
descent,  and  not  by  survivor  as  joint  tenants  shall  have. 

Sect.  281.  And  as  the  survivor  holds  place  between  joint 
tenants,  in  the  same  manner  it  holdeth  place  between  them  which 
have  joint  estate  or  possession  with  another  of  a  chattel  real  or 
personal.  As  if  a  lease  of  lands  or  tenements  be  made  to  many 
for  term  of  years,  he,  which  survives  of  the  lessees,  shall  have  the 
tenements  to  him  only  during  the  term  by  force  of  the  same 
lease.  And  if  a  horse  or  any  other  chattel  personal  be  given  to 
many,  he  which  surviveth  shall  have  the  horse  only  ^. 

Sect.  282.  In  the  same  manner  it  is  of  debts  and  duties,  for  if 
an  obligation  be  made  to  many  for  one  debt,  he  which  surviveth 
shall  have  the  whole  debt  or  duty.  And  so  is  it  of  other  cove- 
nants and  contracts. 

Sect.  283.  Also  there  may  be  some  joint  tenants  which  may 
have  a  joint  estate,  and  be  joint  tenants  for  term  of  their 
lives,  and  yet  have  several  inheritances.  As  if  lands  be  given  to 
two  men  and  to  the  heirs  of  their  two  bodies  begotten,  in  this 
case  the  donees  have  a  joint  estate  for  term  of  their  two  lives, 
and  yet  they  have  several  inheritances  :  for  if  one  of  the  donees 
hath  issue  and  die,  the  other  which  surviveth  shall  have  the  whole 
by  the  survivor  for  term  of  his  life,  and  if  he  which  surviveth 
hath  also  issue  and  die,  then  the  issue  of  the  one  shall  have  the 
one  moiety,  and  the  issue  of  the  other  shall  have  the  other  moiety 
of  the  land,  and  they  shall  hold  the  land  between  them  in 
common,  and  they  are  not  joint  tenants,  but  are  tenants  in 
common. 

Sect.  287.  Also  if  there  be  two  joint  tenants  of  land  in  fee 
simple  within  a  l)orough  where  lauds  and  tenements  are  devisable 
by  testament,  and  if  the  one  of  the  said  two  joint  tenants  deviseth 
that  which  to  him  belongeth  by  his  testament  and  dieth,  this 
devise  is  void  ^.  And  the  cause  is,  for  that  no  devise  can  take 
effect  till  after  the  death  of  the  devisor,  and  by  his  death  all 
the  land  presently  cometh  by  the  law  to  his  companion  which 

'  There  is  and  has  always  been  an  exception  in  the  case  of  property 
jointly  owned  for  purposes  of  trade  :  the  maxim  being,  'Jus  accrescendi 
inter  mercatorea  locum  non  habet.' 

''■  A  joint  tenant,  though  he  can  make  an  effectual  alienation  inter 
vivos,  cannot  do  so  by  will.  For  the  effect  of  alienation  by  a  joint 
tenant  during  his  life  see  sect.  292,  below. 


204  Completion  of  the  Common  Lcno.  [chap.  v. 

survivetli,  by  the  survivor,  tlie  which  he  doth  not  claim,  nor  hath 
anything  in  the  land  by  the  devisor,  but  in  his  own  right  by  the 
survivor  according  to  the  course  of  law,  and  for  this  cause  such 
devise  is  void.  But  otherwise  it  is  of  parceners  seised  of  tene- 
ments devisable  in  like  case  of  devise. 

Sect.  288.  Also  it  is  commonly  said  that  every  joint  tenant 
is  seised  of  the  land  which  he  holdeth  jointly  per  my  et  per  tout  ; 
and  this  is  as  much  as  to  say  as  he  is  seised  by  every  parcel  and 
by  the  whole,  and  this  is  true,  for  in  every  parcel  and  by  every 
parcel  and  by  all  the  lands  and  tenements  he  is  jointly  seised 
with  his  companion  \ 

Sect.  290.  Also,  joint  tenants  (if  they  will)  may  make  parti- 
tion -  between  them,  and  the  partition  is  good  enough,  but  they 
shall  not  be  compelled  to  do  this  by  law,  but  if  they  will  make 
partition  of  their  own  will  and  agreement,  the  partition  shall 
stand  in  force. 

Sect.  291.  Also  if  a  joint  estate  be  made  of  land  to  a  husband 
and  wife  and  to  a  third  person,  in  this  case  the  husband  and 
wife  have  in  law  in  their  right  but  a  moiety,  and  the  third  person 
shall  have  as  much  as  the  husband  and  wife,  viz.  the  other 
moiety.  And  the  cause  is  for  that  the  husband  and  wife  are  but 
one  person  in  law.      .     . 

Chap.  iv.  sect.  292.  Tenants  in  common  are  they  which  have 
lands  or  tenements  in  fee  simple,  fee  tail,  or  for  term  of  life,  and 
they  have  such  lands  or  tenements  by  several  titles,  and  not  by 
a  joint  title,  and  none  of  them  know  of  this  his  several,  but  they 
ought  by  the  law  to  occupy  these  lands  or  tenements  in  common, 
and  jpro  indiviso  to  take  the  profits  in  common  '.       And  because 

'  And  yet,  as  Sir  Edward  Coke  points  out  in  his  Commentary  on  this 
passage,  one  of  two  joint  tenants  cannot  dispose  by  feofFment,  devise,  or 
otherwise,  of  more  than  a  moiety  of  the  lands  ;  nor  is  the  estate  of  a  joint 
tenant  affected  by  the  escheat  or  forfeiture  of  the  interest  of  his  co-tenant. 

^  By  a  deed  of  partition.  In  this  point  joint  tenants  differed  from  co- 
parceners, who  were  compellable  to  make  partition  by  a  proceeding  called 
a  writ  of  partition  (Littleton,  sect.  247).  By  the  statutes  31  Henry  VIII, 
c.  1  ;  32  Henry  VIII,  c.  32  this  proceeding  was  made  available  for  joint 
tenants.  In  later  times  the  old  writ  of  partition  was  in  practice  superseded 
by  the  jurisdiction  of  the  Court  of  Chancery  enforcing  partition  amongst 
joint  tenants,  upon  a  bill  for  the  purpose  being  filed  by  one  of  them,  and  the 
old  writ  was  finally  abolished  by  Statute  3  and  4  Will.  IV,  c.  27.  s.  36. 

^  Thus  if  lands  are  given  to  two  to  hold  as  tenants  in  common  and  one 


§  4«1     Joint  Tenants,  Tenants  in  Common,  Coparceners.     205 

they  come  to  such  hinds  or  tenements  by  several  titles  and  not 
by  one  joint  title,  and  their  occupation  and  possession  shall  be 
by  law  between  them  in  common,  they  are  called  tenants  in 
common.  As  if  a  man  infeoff"  two  joint  tenants  in  fee,  and  the  one 
of  them  alien  that  which  to  him  belongeth  to  another  in  fee,  now 
the  alienee  and  the  other  joint  tenant  are  tenants  in  common, 
because  they  are  in  such  tenements  by  several  titles,  for  the 
alienee  cometh  to  the  moiety  by  the  feoffment  of  one  of  the  joint 
tenants,  and  the  other  joint  tenant  hath  the  other  moiety  by  force 
of  the  first  feoffment  made  to  him  and  to  his  companion.  And 
so  they  are  in  by  several  titles,  that  is  to  say  by  several  feoffments. 

Sect.  296.  But  if  lands  be  given  to  two  men,  and  to  the 
heirs  of  their  two  bodies  begotten,  the  donees  have  a  joint  estate 
for  term  of  their  lives  ;  and  if  each  of  them  hath  issue  and  die, 
their  issue  shall  hold  in  common.  But  if  lands  be  given  to  two 
abbots,  as  to  the  Abbot  of  Westminster  and  to  the  Abbot  of  St. 
Albans,  to  have  and  to  hold  to  them  and  to  their  successors,  in 
this  case  they  have  presently  at  the  beginning  an  estate  in  com- 
mon and  not  a  joint  estate.  And  the  reason  is,  for  that  every 
abbot  or  other  sovereign  of  a  house  of  z-eligion,  before  that  hewas 
made  abbot  or  sovereign,  was  but  as  a  dead  person  in  law,  and 
when  he  is  made  abbot  he  is  as  a  man  personable  in  law,  only  to 
purchase  and  have  lands  or  tenements  or  other  things  to  the  use 
of  his  house,  and  not  to  his  own  proper  use  as  another  secular 
man  may,  and  therefore  at  the  beginning  of  their  purchase  they 
are  tenants  in  common  ;  and  if  one  of  them  die,  the  abbot  which 
surviveth  shall  not  have  the  whole  by  survivor,  but  the  successor 
of  the  abbot  which  is  dead  shall  hold  the  moiety  in  common 
with  the  abbot  that  surviveth. 

Sect.  298.  Also  if  lands  be  given  to  two  to  have  and  to  hold, 
scil.  the  one  moiety  to  the  one  and  to  his  heirs,  and  the  other 
moiety  to  the  other  and  to  his  heirs,  they  are  tenants  in 
common  ^ 

dies,  his  heir  holds  in  common  with  the  other.  So  one  tenant  in  common 
may  have  a  different  estate  from  another — one  may  have  the  estate  for 
years,  another  in  fee,  another  for  life,  etc.  The  only  essential  characteristic 
is  that  the  land  itself  should  not  be  divided. 

^  Whether  any  particular  gift  creates  a  joint  tenancy  or  a  tenancy  in 
common  is  a  question  of  construction.  The  general  rule  at  common  law  was 
in  favour  of  joint  tenancy,  as  is  seen  from  the  first  instance  in  sect.  296.  It 
might  have  been  expected  that  that  gift  would  have  simply  created  a  tenancy 
in  common  in  fee  simple.     In  order  to  create  a  tenancy  in  common  it  is 


2o6  Completion  of  the  Common  Law.  [chap.  v. 

Sect.  299.  Also  if  a  man  seised  of  certain  lands  infeoff  another 
of  the  moiety  of  the  same  land  without  any  speech  of  assign- 
ment or  limitation  of  the  same  moiety  in  severalty  at  the  time 
of  the  feoffment,  then  the  feoffee  and  feoffor  shall  hold  their 
parts  of  the  land  in  common. 

Lib.  iii.  c.  I.  sect.  241.  Parceners  are  of  two  sorts,  to  wit, 
parceners  according  to  the  course  of  the  common  law,  and  parce- 
ners according  to  the  custom.  Parceners  after  the  course  of  the 
common  law  are  where  a  man  or  woman  seised  of  certain  lands 
or  tenements  in  fee  simple  or  in  tail  hath  no  issue  but  daughters 
and  dieth,  and  the  tenements  descend  to  the  issues,  and  the 
dausrhters  enter  into  the  lands  or  tenements  so  descended  to 
them,  then  they  are  called  parceners,  and  be  but  one  heir  to 
their  ancestor.  And  they  are  called  pai'ceners  because  by  the 
writ  which  is  called  hreve  de  participatione  facieyida  the  law  will 
constrain  them  that  partition  shall  be  made  among  them  \  And 
if  there  be  two  daughters  to  whom  the  land  descendeth,  then 
they  be  called  two  parceners,  and  if  there  be  three  daughters 
they  be  called  three  parceners,  and  four  daughters  four  parceners, 
and  so  forth. 

Sect.  254.  And  note  that  none  are  called  parceners  by  the 
common  law  but  females  or  the  heirs  of  females  which  come  to 
lands  or  tenements  by  descent  ;  for  if  sisters  purchase  lands  or 
tenements,  of  this  they  are  called  joint  tenants  and  not  parceners. 

Sect.  265.  Parceners  by  the  custom  are  where  a  man  seised  in 
fee  simple  or  in  fee  tail  of  lands  or  tenements  which  are  of  the 
tenure  called  gavelkind  within  the  county  of  Kent  hath  issue 
divers  sons  and  die,  such  lands  or  tenements  shall  descend 
to  all  the  sons  by  the  custom,  and  they  shall  equally  inhei-it  and 
make  partition  by  the  custom ;  as  females  shall  do,  and  a  writ  of 
partition  lieth  in  this  case  as  between  females.  But  it  behoveth 
in  the  declaration  to  make  mention  of  the  custom^.     Also  such 

necessary  that  there  should  be  words  which  eithei-  expressly  or  by  neces- 
sary implication  mean  that  the  inheritances  are  to  be  several ;  as  in  the 
text,  '  to  the  heirs  of  their  tico  bodies  begotten.'  A  gift  however  in  these 
terms  to  a  man  and  a  woman  capable  of  marrying  each  other  would  create 
a  joint  tenancy.  In  the  later  period  of  the  law  the  rule  has  been  different, 
and  courts  of  equity  have  inclined  to  construe  limitations  as  much  as 
possible  in  favour  of  tenancy  in  common. 

*  See  above,  p.  203,  n.  2. 

2  That  is,  in  pleading  it  must  be  stated  that  the  land  is  of  the  custom  of 
gavelkind. 


§5(i)-]  CredHors  RigJds.  207 

custom  is  in  other  places  of  England,  and  also  such  custom  is  in 
North  Wales. 

§  5.   Creditors'  Rights. 

No  bi-ancli  of  the  law  is  of  greater  practical  importance  than 
that  which  relates  to  the  rights  which  creditors  gradually  ac- 
quired of  having  recourse  to  the  land  of  their  debtors  for  the 
payment  of  their  debts.  In  the  first  place,  the  creditor  might 
acquire  rights  over  the  debtor's  land  in  consequence  of  a  judicial 
proceeding  either  in  the  ordinary  courts  of  common  law,  or  under 
the  extraordinary  jurisdictions  created  by  the  Statute  of  Mer- 
chants, 13  Edward  I,  stat.  3,  and  the  Statutum  de  Stapulis, 
27  Edward  III,  stat.  2.  c.  9.  Secondly,  a  debtor  might,  with- 
out the  intervention  of  any  judicial  proceedings,  give  the  creditor 
the  security  of  his  land  for  a  debt. 

(i)  Remedies  hy  Legcd  Process. 

After  obtaining  a  judgment  in  his  favour  in  an  action  at 
common  law,  the  creditor  was  enabled  by  one  of  the  provi- 
sions of  the  Statute  of  Westminster  II  (13  Edward  I,  c.  18)  to 
choose  whether  to  have  execution  upon  the  goods  of  the  debtor 
by  the  writ  which  is  still  called  the  writ  oi fieri  facias,  or  to  have 
a  writ  commanding  the  sheriff  to  '  deliver  to  him  all  the  chattels 
of  the  debtor  (saving  only  his  oxen  and  beasts  of  his  plough), 
and  the  one  half  of  his  land,  until  the  debt  be  levied  upon  a  rea- 
sonable price  or  extent.'  This  power  of  the  creditor  to  seize  and 
sell  half  the  debtor's  land  is  now '  extended  to  the  whole.  The 
writ  by  which  this  is  effected  has  ever  since  the  Statute  of  West- 
minster II  been  called  the  Avrit  of  elegit. 

The  Statutes  Merchant  and  Staple  ^  were  designed  to  give 
creditors  who  were  merchants  a  speedier  and  more  effectual  mode 
of  proceeding  to  recover  debts  than  was  afforded  by  the  common 

*  I  and  2  Vic.  c.  no.  s.  ii. 

^  The  Statute  of  Acton  Burnell,  de  Mercatoribus,  ii  Edward  I,  followed 
by  13  Edward  I,  stat.  3,  and  the  Statutum  de  Stapulis,  27  Edward  III, 
stat.  2. 


2o8  Completion  of  the  Common  Law.  [chap.  v. 

law.  The  merchant  creditor  was  empowered  to  summon  his 
debtor  before  the  'Mayor  of  London  or  before  some  chief 
warden  of  a  city  or  of  another  good  town  where  the  king  shall 
appoint  V  and  obtain  from  him  an  acknowledgment  or  recog- 
nizance of  the  debt  and  of  the  day  at  which  it  would  become  due. 
This  acknowledgment  was  then  formally  drawn  up,  and  if  the 
debt  was  not  paid  it  might  be  enforced  against  the  person  and 
pi'operty  of  the  debtor.  As  to  the  debtor's  lands,  *  the  mer- 
chant shall  have  such  seisin  of  the  lands  and  tenements  delivered 
unto  him  or  his  assigns  that  he  may  maintain  a  writ  of  novel 
disseisin  if  he  be  put  out,  and  of  redisseisin  also  as  of  freehold, 
to  hold  to  him  and  his  assigns  until  the  debt  be  paid  ^.' 

It  should  be  observed  that  these  remedies  by  elegit  and  statute 
merchant  bound  the  lands  from  the  date  of  the  judgment  in  the 
former  case,  and  of  the  recognizance  in  the  latter.  The  creditor 
might  pursue  his  remedy  against  the  lands  although  they  had 
come  to  the  hands  of  the  heir  of  the  debtor,  or  of  a  purchaser. 
Thus  by  the  above  provision  a  new  kind  of  interest  in  lands 
was  in  effect  created,  and  accordingly  we  read  of  tenancy  by 
statute  merchant,  statute  staple,  and  elegit  ^. 

The  interest  of  such  a  tenant  devolved  at  his  decease  not  upon 
his  heir  but  upon  his  executors  or  administrators,  and  so  far 
partook  of  the  nature  of  personalty.  On  the  other  hand,  the 
estate  had  the  characteristic  of  freehold  that  it  had  no  fixed 
period  of  termination,  and  that  the  appropriate  remedy  was  the 
assize  of  novel  disseisin  *. 

Besides  the  remedies  available  to  the  creditor  against  the 
debtor  himself,  the  creditor  might  also  in  some  cases  take  pro- 
ceedinsrs  aaainst  the  heir  to  whom  the  debtor's  lands  had 
descended.  It  appears  that  in  early  times  the  heir  was  bound 
to  satisfy  the  debts  of  his  ancestor  out  of  the  lands  which 

*  13  Edward  I,  stat.  3.  The  jurisdiction  given  by  27  Edward  III,  stat. 
2,  is  to  be  exercised  by  the  Mayor  and  Constables  of  the  Staple.  See  for 
the  places  where  the  Staple  is  to  be  kept,  ib.  c.  i. 

2  13  Edward  I.  ^  See  Coke  upon  Littleton,  289  b. 

*  See  above,  Chap.  II,  §  8. 


§  5  (2).]  Mortcjarjes.  209 

descended  to  him,  so  far  as  the  personalty  was  not  sufficient  for 
the  purpose  ^     By  the  time  of  Edward  I  the  liability  of  the  heir 
for  the  debts  of  his  ancestor  seems  to  have  been  confined,  except 
as  regards  debts  due  to  the  Crown,  to  those  secured  by  deed 
(called  specialty  debts)  in  which  the  heir  was  expressly  named ^. 
For    such    debts    an    action    at  law   has    always    been    main- 
tainable by  the  creditor  against  the  heir.     The  liability  of  the 
heir  in  this  respect  was  by  a  modern  statute  extended  to  the 
devisee  of  the  debtor  ^     But  it  was  not  till  1807  that  any  mode 
was  provided  by  which  creditors  could  realise  out  of  the  lands  of 
the  debtor  in  the  hands  of  the  heir  or  devisee  their  debts  which 
were  not   secured  by  deed   binding  the    heir  or   devisee.     By 
47  Geo.  Ill,  c.   74,  the  fee  simple  estates  of  deceased  traders 
were   rendered   liable   to   the   payment  of   all   debts,  '  as  well 
debts  due  on  simple  contract  as  on  specialty;'  and  in  1833  (3 
and  4  Will.  IV,  c.  104)  the  same  nile  was  applied  to  the  estates 
of  all  deceased  persons,  reserving  however  a  priority  to  specialty 
creditors.      This   priority   was  abolished  by  32  and   33    Vict, 
c.  46.      The  mode  in  which  effect  is  given  to  the  provisions  of 
these  statutes  is  by  having  the  real  estate  of  the  deceased  ad- 
ministered by  the  Court  of  Chancery  in  a  suit  instituted  by  a 
creditor,  and  the  proceeds  applied  to  the  payment,  first  of  debts, 
and  then  of  legacies  *. 

(2)  Mortgages. 

The  second  class  of  creditors'  remedies  above  noticed  is  where, 
without  the  intervention  of  any  legal  process,  the  debtor  has 
voluntarily  given  his  land  as  security  for  the  debt. 

'  Glanville,  lib.  vii.  c.  8  :  'Si  vero  non  sufficiunt  res  liefuncti  ad  debita 
persolvenda,  tunc  quidem  haeres  ipse  defectum  ipsum  de  suo  tenetur  adim- 
plere  ;  ita  dico  si  habuerit  aetatein  haeres  ipse."     See  also  Bracton,  6i  b. 

*  See  Britton,  64  b  :  '  For  we  will  that  none  be  bound  to  pay  the  debt 
of  his  ancestor,  whose  heir  he  is,  to  any  other  but  to  us,  unless  he  be  thereto 
especially  bound  I  y  the  deed  of  his  ancestor.' 

3  3  and  4  William  and  Mary,  c.  14.  s.  2,  repealed  by  11  Geo.  IV  and 
I  Will.  IV,  c.  47,  which  gives  a  more  extended  remedy  against  the  devisee. 
As  to  a  devise,  see  Chap.  VIII. 

*  See  Williams  on  Real  Property,  pp.  78-81. 


3IO  Completmi  of  the  Common  Law.         [chap.  v. 

This  practice  is  very  ancient.  Pledges  of  land  are  often  men- 
tioned in  Domesday.  In  the  time  of  Glanvill  pledges  of  land 
were  of  two  kinds,  vivum  vadium  and  mortuum  vadium.  Where 
a  vivum  vadium  was  created,  the  land  was  conveyed  to  the 
creditor  to  be  held  by  him  for  a  certain  time,  during  which  the 
rents  and  profits  went  towards  the  discharge  of  the  debt.  In  a 
mortuum  vadium  there  was  no  such  arrangement  as  to  the 
profits.  The  latter  class  of  security  was  looked  on  as  a  species 
of  usury,  and,  though  not  absolutely  prohibited,  rendered  the 
creditor  liable  to  the  penalties  of  usury.  It  appears  however 
that  upon  payment  of  the  debt  the  debtor  might  recover  the 
land  just  as  in  the  case  of  a  pledge  of  a  personal  chattel  ^  In 
the  time  of  Littleton  a  mortgage  had  become  a  species  of  estate 
upon  condition.  The  land  was  conveyed,  usually  by  feoffment, 
by  the  debtor  to  the  creditor,  subject  to  the  condition  that  on  re- 
payment of  the  loan  by  a  certain  day  the  feoffor  (the  debtor)  might 
re-enter.  On  the  failure  of  the  feoffor  to  perform  the  condition, 
the  law  refused  to  regard  the  fact  that  the  real  nature  and  intent 


^  '  Quandoque  res  immobiles  (ponuntur  in  vadium)  ut  terrae  et  tenementa 
et  redditus.  .  .  .  Item  quandoque  invadiatur  res  aliqua  in  niortuo 
vadio  quandoque  non.  Mortuum  vadium  dicitur  illud  cujus  fructus  vel 
redditus  interim  percepti  in  nullo  se  acquietant.  .  .  .  Cum  vero  res 
imraobilis  ponitur  in  vadium  ita  quod  inde  facta  fuerit  seisina  ipsi  creditori, 
et  ad  terminum,  aut  ita  convenit  inter  creditorem  et  debitorem  quod  exitus 
et  redditus  interim  se  acquietent,  aut  sic  quod  in  nullo  se  acquietent. 
Prima  conventio  justa  est  et  tenet.  Secunda  injusta  est  et  inhonesta,  quae 
dicitur  mortuum  vadium,  sed  per  curiam  domini  regis  non  prohibetur  fieri, 
et  tamen  reputat  earn  pro  specie  usurae.  Unde  si  quis  in  tali  vadio  deces- 
serit,  et  post  mortem  ejus  hoc  fuerit  probatum,  de  rebus  ejus  non  aliter  dis- 
ponetur  quani  de  rebus  usurarii.  .  .  Notandum  tamen  quod  ex  quo  ali- 
quis  solverit  id  quod  debuit,  sel  solvere  se  obtulit  competenter,  si  creditor 
ulteiius  vadium  penes  se  maliciose  detinuerit,  debitor  ipse  se  inde  curiae 
conquerens  tale  breve  habebit  :  Rex  vicecomiti  salutem.  Praecipe  N.  quod 
juste  et  sine  dilatione  reddat  R.  totam  terram  vel  terram  illam  in  ilia  villa 
quam  ei  invadiavit  pro  centum  marcis  ad  terminum  qui  praeteriit  ut  dicit, 
et  denarios  suos  idem  recipiat,  vel  quam  inde  acquietavit  ut  dicit,  et  nisi 
fecerit  summone  eum  perbonos,'  etc.  Glanvill,  lib.  x.  cc.  6,  8,  9;  and  inxiii. 
■26,  an  account  is  given  of  the  'recognition'  to  ascertain  whether  land  in 
dispute  was  held  '  ut  de  feodo,  an  ut  de  vadio.' 


§  5  (2) .]  Mortgages.  2 1 1 

of  the  transaction  was  that  the  land  should  be  held  by  the  feoffee 
merely  as  a  security  for  a  debt,  and  insisted  on  the  enforcing 
of  the  rules  relating  to  estates  upon  condition  in  all  their 
strictness,  holding  that  the  estate  was  thereupon  vested  abso- 
■  lutely  in  the  feoffee. 

In  later  times,  when  the  jurisdiction  of  the  Chancellor  was 
firmly  established,  the  rights  and  duties  of  mortgagor  and  mort- 
gagee recognised  by  Equity  became  wholly  different  from  those 
recognised  by  Law.  The  rules  of  common  law  remain  unaltered, 
and  the  transaction  is  still  at  the  present  day  a  conveyance  of  the 
lands,  subject  to  a  condition  for  re-entry,  or  more  commonly  to 
an  agi-eement  for  reconveyance  by  the  mortgagee  to  the  mort- 
gagor, on  payment  of  the  debt  on  a  certain  day,  and  to  a 
proviso  that,  until  default  in  payment  of  the  debt,  the  mortgagor 
is  to  remain  in  possession.  So  far  as  the  legal  estate,  or  interest 
at  common  law,  is  concerned,  the  ordinary  rules  governing  con- 
veyances of  land  apply;  no  notice  is  taken  of  the  object  of 
the  transaction;  the  mortgagor,  who  remains  in  possession,  is 
considered  to  have  an  interest  in  the  nature  of  a  term  until  de- 
fault made  in  the  payment  of  the  debt ;  after  default,  the  whole 
legal  property  in  the  land  passes  irrevocably  to  the  mortgagee, 
with  all  its  incidents.  For  instance,  a  mortgagor,  after  default  in 
payment  of  the  mortgage  debt,  cannot  make  a  valid  lease  of  the 
lands  without  the  concurrence  of  the  mortgagee.  In  Equity, 
however,  that  is,  by  the  Court  of  Chancery,  the  real  nature  of 
the  transaction  is  regarded,  and  even  after  default  is  made,  not- 
withstanding the  terms  of  the  instrument  creating  the  mortgage, 
the  mortgagee  will  be  made  to  reconvey  the  land  to  the  mort- 
gagor on  payment  of  debt,  interest,  and  costs.  This  right  which 
remains  in  the  mortgagor  is  called  his  equity  of  redemption 
(right  to  redeem),  and  is  in  fact  the  ownership  of  the  land  subject 
to  the  mortgage  debt  \ 

Littleton's  Tenures,  Lib.  iii.  c.  5.  sect.  332.     {Of  Estates 

1   See   further  as   to   mortgages,  Williams   on  Real  Property,  part  iv. 
chap.  ii. 

P  2 


212  Completion  of  the  Common  Law.  [chap.  v. 

upon  Condition.)  Item,  if  a  feofFraent  be  made  upon  such  con- 
dition that  if  the  feoffor  pay  to  the  feoffee  at  a  certain  day  forty 
pounds  of  money,  that  then  the  feoffor  may  re-enter ;  in  this 
case  the  feoffee  is  called  tenant  in  mortgage,  which  is  as  much 
to  say  in  French  as  mart  gage,  and  in  Latin  mortuum  vadium. 
And  it  seemeth  that  the  cause  why  it  is  called  mortgage  is, 
for  that  it  is  doubtful  whether  the  feoffor  will  pay  at  the  day 
limited  such  sum  or  not :  and  if  he  doth  not  pay,  then  the  land 
which  is  put  in  pledge  upon  condition  for  the  payment  of  the 
money  is  taken  from  him  for  ever,  and  so  dead  to  him  upon 
condition.  And  if  he  doth  pay  the  money,  then  the  pledge  is 
dead  as  to  the  tenant. 

Sect.  333.  Also  as  a  man  may  make  a  feoffment  in  fee  in 
mortgage,  so  a  man  may  make  a  gift  in  tail  in  mortgage,  and  a 
lease  for  term  of  life,  or  for  term  of  years  in  mortgage.  And 
all  such  tenants  are  called  tenants  in  mortgaoe  according  to  the 
estates  which  they  have  in  the  land. 

Sect.  337.  Also  if  a  feoffment  be  made  upon  condition  that  if 
the  feoffor  pay  a  certain  sum  of  money  to  the  feoffee,  then  it 
shall  be  lawful  to  the  feoffor  and  his  heirs  to  enter ;  in  this  case 
if  the  feoffor  die  before  the  payment  made,  and  the  heir  will 
tender  to  the  feoffee  the  money,  such  tender  is  void,  because  the 
time  within  which  this  ought  to  be  done  is  past.  For  Avhen  the 
condition  is,  that  if  the  feoffor  pay  the  money  to  the  feoffee,  this 
is  as  much  to  say  as  if  the  feoffor  during  his  life  pay  the  money 
to  the  feoffee  ;  and  when  the  feoffor  dieth  then  the  time  of  the 
tender  is  past.  But  otherwise  it  is  where  a  day  of  payment  is 
limited,  and  the  feoffor  die  before  the  day,  then  may  the  heir 
tender  the  money  as  is  aforesaid,  for  that  the  time  of  the  tender 
was  not  past  by  the  death  of  the  feoffor.  Also  it  seemeth  that 
in  such  case,  where  the  feoffor  dieth  before  the  day  of  ])ayment, 
if  the  executors  of  the  feoffor  tender  the  money  to  the  feoffee  at 
the  day  of  payment,  this  tender  is  good  cnougli ;  and  if  the 
feoffee  refuse  it,  the  heirs  of  the  feoffor  may  enter.  And  the 
reason  is  for  that  the  executors  represent  the  person  of  their 
testator. 

Sect.  339.  Also  if  the  feoffee  in  mortgage  before  the  day  of 
payment  which  should  be  made  to  him  makes  his  executors  and 
die.  and  his  heir  entereth  into  the  land  as  he  ought,  it  seemeth 
in  this  case  that  the  feoffor  ought  to  pay  the  money  at  the  day 
appointed  to  the  executors,  and  not  to  tlie  heir  of  the  feoffee, 
because  the  money  at  the  beginning  trenched  to  the  feoffee  in 


§  6.]  Copyholds.  213 

manner  as  a  duty,  and  it  shall  be  intended  that  the  estate  was 
made  by  reason  of  the  lending  of  the  money  by  the  feoffee,  or  for 
some  other  duty ;  and  therefore  the  payment  shall  not  be  made 
to  the  heir  as  it  seemeth,  but  the  words  of  the  condition  may  be 
such  as  the  payment  shall  be  made  to  the  heir.  As  if  the  condi- 
tion were  that  if  the  feoffor  pay  to  the  feoffee  or  to  his  heirs  such 
a  sum  at  such  a  daj^,  there  after  the  death  of  the  feoffee  if  he 
dieth  before  the  day  limited,  the  payment  ought  to  be  made  to 
the  heir  at  the  day  appointed  ^ 


§  6.  Copyhold  Tenure. 

It  has  been  already  seen  that,  at  the  time  of  Domesday, 
besides  the  liberi  homines  there  was  commonly  a  large  class  of 
persons  residing  within  the  limits  of  the  manor  of  an  inferior 
status,  and  bound  as  a  general  rule  to  render  services  upon  the 
domain  lands  of  the  lord  ^.  The  various  names  which  prevailed 
at  the  time  of  Domesday  and  earlier  cease  to  be  recognised,  and 
we  hear  only  of  villani,  villeins.  These  were  either  villeins  re- 
gardant, that  is,  attached  to  the  land,  in  which  case  the  right  to 
the  services  of  the  villein  passed  with  every  alienation  of  the 
land ;  or  villeins  in  gross,  attached  to  the  person  of  the  lord,  the 
right  to  their  services  being  saleable  by  deed.  It  is  with  the 
former  class  that  the  history  of  the  law  of  land  is  mainly  con- 
cerned. 

Where  a  villein  was  attached  to  the  land,  it  followed  as  a 
matter  of  course  that  he  had  a  permanent  habitation,  and  the 
means  of  supporting  himself  and  his  family  by  the  occupation  of 
a  plot  of  ground.  This  must  have  been  the  practice  long  before 
the  Conquest,  and  was  continued  when  the  customary  law  of  land 
was  modified  by  the  changes  wrought  by  the  Norman  rule. 
When  the  judicial  institutions  of  the  country  took  the  form  in 
which  they  appear  in  the  reign  of  Henry  II,  there  was  no  forum 

*  Littletnn  proceeds  (sects.  340-^43)  to  consider  where  the  debt  is  to  be 
paid  or  tendered.  He  recoruiiiends  the  feoffor  to  fix  some  definite  phice 
in  the  instrument  creatini^  the  mortgage,  otherwise  the  feoffor  will  be 
bound  to  seek  the  feoffee  if  he  be  anywhere  within  the  realm  of  England. 

*  See  above,  Chap.  I.  p.  41  ;  and  Chap.  III.  §  12. 


214  Coinjdetion  of  the  Common  Law.        [chap.  v. 

in  which  the  villein  could  assert  his  right  to  his  land,  at  all 
events  as  against  the  lord.  The  courts  baron  of  the  manors  were 
only  for  the  freeholders  of  the  manor,  and  the  Curia  Regis  was  in 
one  point  of  view  but  the  supreme  court  baron  of  the  nation,  and 
only  took  cognizance  of  freehold  rights.  The  villein  had  no 
locus  standi  in  either.  At  the  same  time,  as  has  been  pointed 
out  in  the  third  chapter,  it  became  the  practice  to  regard  not  so 
much  the  status  of  the  villein,  as  the  nature  of  his  interest  in 
land  arising  fi'om  the  character  of  the  services  rendered  to  the 
lord,  and  thus  freemen  came  to  hold  land  '  in  villenage,'  and 
were  little  or  no  better  off  as  to  legal  rights  than  the  born 
villeins.  The  only  legal  protection,  which  either  the  villein  or 
the  freeman  holding  in  villenage  seems  to  have  had  against  the 
lord  in  Bracton's  time,  was  where  the  lord  entered  into  a  cove- 
nant with  the  tenant  in  villenage  \ 

The  lawyers  described  the  position  of  the  tenant  in  villenage 
by  the  expression  that  he  held  his  land  at  the  will  of  the  lord  ^. 
But,  as  a  matter  of  fact,  the  customs  and  practices  which  pre- 
vailed in  the  various  manors  tended  to  protect  and  perpetuate 
the  interests  of  this  class  of  tenants.  Custom  fixed  the  rights  of 
the  lord,  the  amount  of  service  to  be  rendered  to  him,  the  heriots 
upon  the  death  of  the  tenant,  the  fine  on  the  admittance  of  a  new 
tenant,  the  mode  of  succession  and  devolution  of  the  lands  to  the 
tenant's  eldest  or  youngest  son  or  to  all  the  sons  alike,  and  so 
forth.  These  customs,  though  the  institutions  of  the  countrj' 
afforded  no  means  of  enforcing  them  as  against  the  lord  ^  by 
judicial  action,  were  deeply  rooted  in  the  habits  of  the  people, 
and  in  all  probability  the  lord  who  ventured  to  set  them  aside 


1  See  above,  Chap.  III.  §  la. 

*  '  For  it  is  no  more  to  say,  "  I  hold  the  tenements  in  villenage  of  the 
Dean  "  etc.,  than  to  say,  "  I  hold  the  tenements  at  the  will  of  the  Dean"  etc.;' 
i.  e.  both  are  modes  of  describing  the  nature  of  the  holding,  not  the  status 
of  the  holder.     Year  Book,  20  Edw.  I,  p.  40. 

'  It  appears  that  as  against  a  wrong-doer  other  than  the  lord  the 
villein  might  sue  by  petition  in  the  manor  court.  See  Littleton,  sect. 
76,  below. 


§  6.]  Copyliolds,  215 

and  deprive  the  villein  of  his  customary  rights  must  have  been 
exceptionally  grasping  and  defiant  of  public  opinion.  Thus  it  is 
that  throughout  the  period  extending  from  Bracton  to  Edward  IV 
we  hear  this  class  of  tenants  spoken  of  as  if  they  had  a  recognised 
and  legally  protected  interest  in  lands.  Sir  E.  Coke  ^  points  out 
that  'in  H.  5.  11  they  be  called  copiholders,  in  14  H.  4.  34 
tenant  ^6?r  h  verge,  and  in  42  E.  3.  25  -  tenant  ^^e/-  role  solonqiie 
le  volunl  le  seignior,  and  in  statute  of  4  E.  i,  called  Extenta 
Manerii,  they  are  called  custumarii  tenentes^.' 

It  appears  that  the  tenants  in  villenage  were  present  at  the 
manorial  courts,  not  on  a  level  with  the  freeholders  or  free  suitors 
to  the  court, — who  were  the  pares  curiae,  the  judges  of  the  court, 
by  whose  equal  voice  all  matters  were  decided, — but  in  an  inferior 
position.  The  customary  heir  would  appear  at  the  court  and 
humbly  request  admittance  to  the  land  of  his  deceased  father  on 
payment  of  the  customary  dues  ;  the  tenant  who  had  sold  his 
holding  in  villenage  would  appear  and  surrender  his  land  to  the 
lord  or  his  steward,  and  the  purchaser  would  request  admittance. 
These  and  similar  transactions  were  recorded  on  the  rolls  of  the 
court.  The  rolls  of  the  court  therefore  contain  the  evidence  of 
the  customs  of  the  manor,  the  authorised  copy  of  the  entry  on 
the  rolls  of  the  court  delivered  to  the  tenant  is  his  muniment  of 
title,  and  gives  him  his  name  of  '  copyholder.' 

Thus  in  dealing  with  this  class  of  tenants  the  court  baron  as- 
sumed a  new  form,  which  comes  to  be  distinguished  from  the 
original  court  baron,  and  to  be  called  the  Customaiy  Court 
Baron  or  Customary  Court.     The  freeholders  are  not,  generally 


^  Coke  upon  Littleton,  58  a. 

*  'A  Prior  brings  a  suit  of  trespass  against  one  J.  for  breaking  his  close 
and  carrying  away  his  goods,  to  wit,  corn,  and  tlie  defendant  pleaded  that 
the  land  was  his  frank-tenement,  and  they  were  at  issue ;  and  it  was 
found  by  verdict  that  the  said  J.  held  the  land  of  the  Prior  by  copy  of 
court  roll  at  the  will  of  the  Prior  ;  for  that  it  was  villein-land  (niefe-terre)  ; 
and  for  that  J.  would  not  perfonn  the  services  for  the  land,  the  Prior  seized 

it,'  etc. 

'  See  above,  Chap.  IV.  §  i. 


2i6  Completion  of  the  Common  Law.         [chap.  v. 

speaking,  suitors  at  the  Customary  Court,  except  perhaps  when 
questions  arise  upon  the  customs  of  the  manors  affecting  their 
interests  \  The  functions  of  the  court  are  administrative  rather 
than  judicial.  The  copyholders  or  'homage'  are  not  'pares 
curiae.  Their  principal  function  is  to  make  presentments  upon 
matters  concerning  their  interests  and  the  customs  of  the  manor. 
Their  powers  vary  according  to  the  customs  of  different  manors. 
In  some  there  is  a  custom  for  the  lord  to  enclose,  or  to  grant 
portions  of  the  waste  to  hold  as  copyhold,  with  the  assent  of 
the  homage,  which  is  usually  expressed  by  a  sworn  jury  of  copy- 
holders. Tlie  lord,  or  more  commonly  the  steward,  presides 
over  the  court ;  it  is  his  duty  to  receive  and  record  the  present- 
ments of  the  homage. 

Gradually  the  interest  of  the  copyholder  came  to  be  recognised 
by  the  regular  tribunals.  The  great  step  seems  to  have  been 
the  recognition  of  the  right  of  the  tenant  in  villenage  to  main- 
tain an  action  of  trespass  against  his  lord  ^.  Thus  incidentally 
and  gradually  the  courts  of  common  law  came  to  recognise  and 
enforce  the  customs  which  had  grown  up  in  different  manors ; 
for  example,  the  custom  of  allowing  the  eldest  son  to  succeed  his 
father  in  his  holding,  or  of  admitting  to  the  holding  the  person 
to  whom  the  previous  holder  had  sold  his  rights.  As  the 
character  of  tlie  rights  depended  upon  the  customs  proved  to 
prevail  in  the  different  manors,  the  rights  of  copyholders  varied 
accordingly.  We  find  various  customs  as  to  the  rules  of  descent, 
duration  of  interest,  modes  of  alienation,  extent  of  power  of  user 
and  otherwise,  prevailing  in  different  manors,  the  customs  of 
each  manor  consfeituting  the  law  prevailing  therein.  Except 
where  altered  by  special  custom,  copyholds,  as  to  duration  of 

^  See  Bacon's  Abridgment,  Court  Baron. 

^  It  was  held  in  a  case  reported  in  the  Year  Book,  7  Edward  IV,  p.  19, 
that  this  was  the  appropriate  remedy,  and  not  a  writ  of  subpoena,  i.e.  an 
application  to  the  jurisdiction  of  the  chancellor.  It  would  appear  from 
this  case  and  the  passage  in  Littleton  (sect.  77,  see  below),  that  at  this  time 
various  attempts  were  made  to  secure  legal  protection  for  the  interest  of 
the  copyholder. 


^6.]  Copyholds.  217 

interest,  time  of  enjoyment,  mode  of  descent,  joint  tenancy  and 
tenancy  in  common,  in  general  resemble  freehold  interests. 

Copyhold  tenure  presents  in  the  main  the  same  characteristics 
at  the  present  day.  Land  held  by  copyhold  tenure  is  always 
parcel  of,  and  included  in,  a  manor.  The  lord  of  the  manor  has 
the  freehold,  the  copyholder  holds  'at  the  will  of  the  lord  accord- 
ins:  to  the  custom  of  the  manor.'  The  evidence  of  the  nature 
and  extent  of  his  rights  is  to  be  looked  for,  primarily,  in  the 
court  rolls  of  the  manor.  To  these  reference  is  made  for  ascer- 
taining the  various  dues  (fines,  heriots,  quit  rents S  and  the  like) 
which  the  copyholder  must  render  to  the  lord.  Here  also  is 
found  the  evidence  of  the  mode  of  descent,  mode  of  alienation, 
rights  of  the  surviving  husband  or  widow  of  the  tenant  -,  rights 
of  the  copyholder  to  common  on  the  wastes  of  the  manor^,  and  so 
forth.  For  the  lord  being  the  freeholder,  his  rights  of  ownership 
remain  untouched,  except  so  far  as  they  are  limited  by  the  copy- 
holder's rights  which  have  supervened.  But  inasmuch  as  the 
most  important  of  the  rights  of  ownership,  the  right  of  exclusion, 
is  vested  in  the  copyholder,  a  curious  conflict  sometimes  arises. 
In  some  manors  the  copyholder  may  not  cut  timber  or  open 
mines,  for  these  are  rights  belonging  to  the  lord ;  but  the  lord 
cannot  come  upon  the  land  to  exercise  them*. 

^  '  Quieti  reditus  because  thereby  the  tenant  goes  quit  and  free  of  all 
other  services.'     Blackstone,  ii.  42. 

^  The  right  of  the  widow  of  the  copyhold  tenant  is  called  freebench.  It 
resembles  in  most  points  dower  of  freeholds,  except  that  usually  it  only 
attaches  to  the  copyholds  which  the  husband  has  at  the  time  of  his  de- 
cease.    Williams  on  Real  Property,  p.  371. 

'  The  rights  of  common  enjoyed  by  the  copyholders  are  similar  to  those 
annexed  to  freehold  tenements,  and  differ  only  in  the  title  on  which  they 
rest.  While  the  freeholder  can  only  claim  coumioti  appurtenant  to  his  free- 
hold by  virtue  of  a  grant  or  by  prescription,  the  copyholder's  right  rests  on 
the  custom  of  the  manor.  In  order  to  establish  such  customary  right  of 
common,  the  copyholder  must  adduce  evidence  of  the  general  practice  pre- 
vailing in  the  manor,  and  is  not  limited  to  prove  that  the  right  has  been 
attached  by  grant  or  prescription  to  his  own  particular  tenement. 

*  There  is  a  species  of  tenure  prevailing,  especially  in  the  north  of  Eng- 
land, called  customary  freehold.  It  has  been  much  discussed  whether  a 
customary  tenant,  wiio  is  said  to  hold  by  copy  of  court  roll  but  not  at  the 


2i8  Completion  of  the  Common  Law.         [chap,  v 

The  copyholder  has  the  free  right  of  alienation,  but  the  mode 
of  alienation  preserves  curiously  the  history  of  the  interest.  The 
copyholder  first  surrenders  the  land  to  the  lord,  and  the  lord 
then  admits  (and  may  be  compelled  to  admit)  the  nominee  of 
the  copyholder  upon  payment  of  the  accustomed  fine,  if  any  i. 

In  some  manors  there  is  a  custom  to  entail  lands,  in  others  no 
such  custom  exists.  If  there  is  no  sucli  custom,  an  estate  of 
copyhold  given  to  a  man  and  the  heirs  of  his  body  will  create  a 
fee  simple  conditional,  and,  like  an  estate  in  fee  simple  condi- 
tional in  freeholds  before  De  Donis,  may  be  alienated  on  the 
happening  of  the  condition  -.  Copyholds  not  being  affected  by  the 
statute  De  Donis,  the  power  of  creating  estates  tail  in  copyhold 
lands  must  rest  on  a  custom  to  entail.  In  like  manner  the 
power  of  barring  the  entail  formerly  depended  on  custom,  and 
was  effected  either  by  a  customary  recovery  or  preconcerted  for- 
feiture ai%d  regrant,  or  in  some  cases  by  a  simple  surrender^. 
Since  the  Act  for  the  Abolition  of  Fines  and  Eecoveries  (3  and  4 
Will.  IV,  c.  74)  an  estate  tail  in  copyholds  can  be  barred  by  a 
simple  surrender  with  the  concurrence  of  the  protector  where 
there  is  one. 

The  change  in  the  position  of  the  copyholder  is  thus  summed 
up  by  Sir  Edward  Coke  * :  '  For,  as  I  conjecture,  in  the  Saxons' 
time,  sure  I  am  in  the  Normans'  time,  these  copyholders  were  so 

will  of  the  lord,  is  properly  a  freeholder — whether,  in  other  words,  the 
freehold  is  in  the  lord,  or  in  the  tenant.  The  better  opinion  appears  to  be 
that,  generally  speaking,  the  freehold  is  in  the  lord,  though  it  may  be  in 
some  cases  in  the  tenant ;  and  whether  this  is  so  or  not  is  a  question  of  fact 
to  be  ascertained  by  evidence  as  to  the  nature  and  extent  of  the  rights 
possessed  by  the  tenant.  See  above,  p.  HI,  n.  4,  and  Williams  on  Real 
Property,  pp.  342-344. 

*  Formerly  the  proper  remedy  when  admittance  was  refused  was  by  ap- 
plication to  the  chancellor.  See  Spence,  Equitable  Jurisdiction,  i.  p.  648. 
The  usual  course  in  modem  times  has  been  to  obtain  a  mandamus  from  a 
court  of  law, 

*  See  above,  Chap.  IV.  §  3,  and  Doe  on  the  demise  of  Spencer  v.  Clark, 
5  Barnewall  and  Alderson's  Reports,  p.  458, 

^  See  Williams  on  Real  Property,  p.  349. 

*  Compleat  Copyholder,  sects.  8,  9. 


^  6.]  Copyholds.  219 

far  subject  to  the  lord's  will,  that  the  lords  upon  the  least  occa- 
sion (sometimes  without  any  colour  of  reason,  only  upon  discon- 
tentment and  malice,  sometimes  again  upon  some  sudden  fan- 
tastick  humour,  only  to  make  evident  to  the  world  the  height  of 
their  power  and  authority,)  would  expel  out  of  house  and  home 
their  poor  copyholders,  leaving  them  helpless  and  remediless  by 
any  course  of  law,  and  driving  them  to  sue  by  way  of  petition. 
But  now  copyholders  stand  upon  a  sure  ground  ;  now  they 
weigh  not  their  lord's  displeasure,  they  shake  not  at  every  sudden 
blast  of  wind,  they  eat,  drink,  and  sleep  securely ;  only  having  a 
special  care  of  the  main  chance,  to  perform  carefully  what  duties 
and  services  soever  their  tenure  doth  exact,  and  custom  doth  re- 
quire :  then  let  lord  frown,  the  copyholder  cares  not,  knowing 
himself  safe,  and  not  within  any  danger.  For  if  the  lord's  anger 
gx'ow  to  expulsion,  the  law  hath  provided  several  weapons  of 
remedy;  for  it  is  at  his  election  either  to  sue  a  sub-poeiia'^,  or 
an  action  of  trespass  against  the  lord.  Time  has  dealt  very 
favourably  with  copyholders  in  divers  respects.' 

It  might  have  been  expected  that  so  anomalous  a  class  of 
rights  as  that  which  constitutes  copyhold  tenure  would  have  been 
before  the  present  time  assimilated  to  the  other  forms  of  property 
in  land.  This  however  has  not  been  done.  Copyholds  might  at 
any  period  have  been  enfranchised  (or  converted  into  freeholds) 
by  the  conveyance  of  the  freehold  by  the  lord  to  the  copyholder, 
or  extinguished  by  surrender  of  the  copyhold  by  the  tenant  to 
the  lord.  Various  acts  have  in  recent  times  created  facilities  for 
this  process,  by  providing  means  for  the  assessment  and  commu- 
tation of  the  lord's  rights  and  otherwise ;  and  at  the  present 
da;^  either  lord  or  copyholder  may  compel  enfranchisement  by 
taking  the  proper  steps,  through  the  action  of  the  Copyhold 
Commissioners. 

Where  copyholds  have  not  been  enfranchised  (and  there  is 
still  a  large  though  gradually  decreasing  amount  of  land  subject 

'  This  is  the  technical  expression  for  proceedings  in  Chancery.  See 
Chap.  VI. 


220  Completion  of  the  Common  Law.         [chap.  v. 

to  copyhold  tenure)  the  rights  are  still  regulated  entirely  by 
custom.  And  inasmuch  as  the  characteristics  of  this  form  of 
property  depend  entirely  upon  custom,  they  must  have  prevailed 
from  a  time  whereof  the  memory  of  the  man  runneth  not  to 
the  contrary.  In  practice  this  means  that  the  customary  usages 
should  be  shown  to  have  existed  as  far  back  as  available  evidence 
goes,  from  whicli  the  legal  inference  arises  that  they  have  existed 
from  time  immemorial,  that  is,  ever  since  the  first  year  of 
Richard  I  ^ 

Littleton,  c.  ix.  sect.  73.  {Tenant  by  Copy.)  Tenant  by  copy 
of  court  roll  is  as  if  a  man  be  seised  of  a  manor  within  which 
manor  there  is  a  custom,  which  hath  been  used  time  out  of 
mind  of  man,  that  certain  tenants  within  the  same  manor  have 
used  to  have  lands  and  tenements,  to  hold  to  them  and  their 
heirs  in  fee  simj^le,  or  fee  tail,  or  for  term  of  life,  at  the  will  of 
the  lord  according  to  the  custom  of  the  same  manor. 

Sect.  74.  And  such  a  tenant  may  not  alien  his  land  by  deed, 
for  then  the  lord  may  enter  as  into  a  thing  forfeited  unto  him. 
But  if  he  will  alien  his  land  to  another,  it  behoveth  him  after 
the  custom  to  surrender  the  tenements  in  court  into  the  hands  of 
the  lord,  to  the  use^  of  him  that  shall  have  the  estate,  in  this  form, 
or  to  this  effect : — A.  of  B.  cometh  into  this  court  and  surrendereth 
in  the  same  court  a  mease  into  the  hands  of  the  lord  to  the  use 
of  C.  of  D.  and  Lis  heirs  or  the  heirs  issuing  of  his  body,  or  for 
term  of  life,  etc.  And  upon  that  cometh  the  aforesaid  C.  of  D. 
and  taketh  of  the  lord  in  the  same  court  the  aforesaid  mease  *,  &c. 
To  have  and  to  hold  to  him  and  to  his  heirs,  or  to  him  and 

^  This  date  seems  to  have  become  fixed  as  giving  a  definite  meaning  to  the 
expression  '  time  whereof  etc.,  in  consequence  of  its  having  been  fixed  by 
the  Statute  of  Westminster  I  (3  Edw.  I,  cap.  39)  as  the  period  of  limitation 
in  the  case  of  a  writ  of  right.  Evidence  ther^ore  which  shows  that  the 
custom  alleged  could  not  have  prevailed  in  the  time  of  Richard  I  has  been 
held  suiBcient  to  show  that  the  custom  is  not  a  legal  one  (see  Bryant  v. 
Foot,  Law  Reports,  3  Queen's  Bench,  497).  This  principle  however,  nit- 
withstanding  the  requirements  of  logic,  must  not  be  applied  to  copyhrlds; 
since,  as  has  been  seen,  it  cannot  be  maintained  as  an  historical  fact 
that  copyhold  estates  existed  at  that  time. 

-  It  should  be  observed  that  a  surrender  to  the  use  of  the  alienee  has 
nothing  to  do  with  the  uses  of  land  discussed  below  in  Chaps.  VI.  and  VII. 

^  And  the  lord  is  bound  to  admit  the  surrenderee. 


§  6.]  Tenant  hy  Copy.  23 1 

to  his  heirs  issuing  of  his  body,  or  to  him  for  term  of  life  at  the 
lord's  will,  after  the  custom  of  the  manor,  to  do  and  yield  there- 
fore the  rents,  services,  and  customs  thereof  before  due  and 
accustomed,  and  giveth  the  lord  for  a  fine  etc.,  and  maketli  unto 
the  lord  his  fealty  ^ 

Sect.  75.  And  these  tenants  are  called  tenants  by  copy  of 
court  roll;  because  they  have  no  other  evidence  concerning  their 
tenements,  but  only  the  copies  of  court  rolls. 

Sect.  76.  And  such  tenants  shall  neither  implead,  nor  be  im- 
pleaded for  their  tenements  by  the  king's  writ.  But  if  they  will 
implead  others  for  their  tenements,  they  shall  have  a  plaint 
entered  in  the  lord's  court  in  this  form  or  to  this  effect :  A.  of  B. 
complains  against  C.  of  D.  of  a  plea  of  land,  viz.  of  one  messuage, 
forty  acres  of  land,  four  acres  of  meadow  etc.,  with  the  appur- 
tenances, and  makes  protestation  to  follow  this  complaint  in  the 
nature  of  the  king's  writ  of  assize  of  mort  d'ancestor  at  the  com- 
mon law,  or  of  an  assise  of  novel  disseisin,  or  formedon  in  the 
discender  at  the  common  law,  or  in  the  nature  of  any  other 
writ,  etc.  ^ 

Sect.  77.  And  although  that  some  such  tenants  have  an  in- 
heritance according  to  the  custom  of  the  manor,  yet  they  have 

*  The  law  still  requires  surrender  by  the  tenant  and  admittance  by  the 
lord  or  his  steward  either  in  or  out  of  the  Customary  Court  or  assemblage 
of  copyholders.  No  copyholder  however  need  be  present  at  a  Customary 
Court  (4  and  5  Vic.  c.  35.  s.  86).  If  the  surrender  be  made  out  of  court  it 
was  formerly  necessary  that  the  transaction  should  be  mentioned  or  pre- 
sented at  the  next  court.  This  is  no  longer  the  case,  an  entry  on  the  court 
rolls  being  sufficient  (ib.  s.  89).  Admittance  may  now  take  place  out  of  the 
manor  and  without  ho'ding  a  court  (ib.  s.  88).  Formerly,  when  copyholds 
were  devised,  a  previous  surrender  by  the  copyholder  to  tiie  use  of  his 
will  was  necessary.  This  is  so  no  longer  (55  Geo.  Ill,  c.  H)2,  s.  i);  nor 
is  it  necessary,  as  formerly,  that  the  devisee  should  bring  the  will  into 
the  Customary  Court  and  claim  admittance  ;  now  a  deUvtry  of  a  copy  of 
the  will  to  the  lord  or  his  steward  is  sufficient. 

*  The  action  of  ejectment  was  as  applicable  to  the  recovery  of  the  pos- 
session of  copyholds  as  of  freeholds,  and  took  the  plnce  of  the  remedy 
here  described.  The  same  fictions  were  applied  to  the  one  as  to  the  other 
— a  fictitious  lease  to  a  fictitious  plaintiff  by  the  person  who  was  the  real 
claimant,  fictitious  entry  and  fictitious  ouster  by  a  fictitious  wrong-doer, 
and  permission  to  the  real  defendant  to  defend  on  the  terms  of  his  ad- 
mitting the  truth  of  the  above  fictions.  See  above.  Chap.  III.  §  16,  and 
Blackstone,  iii.  pp.  200-206. 


222  Completion  of  the  Common  Law. 

but  an  estate  but  at  the  will  of  the  lord  according  to  the  course 
of  the  common  law.  For  it  is  said,  that  if  the  lord  do  oust  them, 
they  have  no  other  remedy  but  to  sue  to  their  lords  by  petition ; 
for  if  they  should  have  any  other  remedy  they  should  not  be 
said  to  be  tenants  at  will  of  the  lord  according  to  the  custom  of 
the  manor.  But  the  lord  cannot  break  the  custom  which  is 
reasonable  in  these  cases. 

But  Brian,  chief  justice,  said,  that  his  opinion  hath  always 
been,  and  ever  shall  be,  that  if  such  tenant  by  custom  paying  his 
services  be  ejected  by  the  lord  he  shall  have  an  action  of  trespass 
against  him  \  And  so  was  the  opinion  of  Danby,  chief  justice, 
in  7  Ed.  4  ^.  For  he  saith,  that  tenant  by  the  custom  is  as  well 
inheritor  to  have  his  land  according  to  the  custom  as  he  which 
hath  a  freehold  at  the  common  law. 

1  Year  Book,  21  Ed.  IV,  80.  *  Ibid.,  7  Ed.  IV,  18. 


APPENDIX    TO    PART    I. 


§  I.  Place  of  the  Law  of  Real  Property  in  the  English  System. 

(i)^  It  may  be  convenient  to  subjoin  in  a  tabular  form  a 
summary  of  the  principal  beads  of  arrangement  or  classification 
under  wliich  it  appears  that  English  private  law  may  most  ap- 
propriately be  divitled,  with  a  view  to  show  the  place  occupied 
in  the  English  system  by  the  law  of  land.  By  private  law  is 
meant  that  branch  of  the  law  which  deals  with  the  rights  and 
duties  ^  of  persons  considered  in  their  private  or  individual 
capacity,  as  opposed  to  the  rights  and  duties  which  are  possessed 
by  and  incumbent  on  persons  or  bodies  of  persons  considered  as 
filling  public,  i.e.  jiolitical  or  constitutional  positions  or  oftices, 
or  which  have  relation  to  the  whole  political  community  or  its 
magistrates  and  officers.  Under  private  law,  for  example,  are 
placed  the  class  of  rights  and  duties  relating  to  property  over 
things,  or  arising  from  contracts  or  civil  injuries ;  under  public 
law  the  rights  and  duties  of  the  king,  parliament,  judges,  and 
criminal  law  ^. 

(2)  The  rights  and  their  corresponding  duties  which  form  the 

*  The  numerals  relate  to  the  various  members  of  the  classification  shown 
below,  Table  I. 

^  For  an  analysis  of  the  ideas  involved  in  the  words  'right'  and  'duty  ' 
see  Austin's  Jurisprudence,  especially  lects.  xii,  xiv,  xvi,  xvii. 

^  Mr.  Au.stin  objects  to  the  classification  of  law  as  public  law  and  pri- 
vate law.  See  Austin's  Jurisprudence,  i.  pp.  69,  70 ;  ii.  lect.  xliv.  The  dis- 
tinction however  is  convenient,  is  generally  recognised  by  continental 
jurists,  and  ajjpears  to  rest  on  a  fundamental  distinction  in  the  cature  of 
the  rights  constituting  the  two  classes. 


224  Ajijoendix  to  Part  I.  [§  !•] 

matter  of  English  private  law  are  fii'st  to  be  divided  into  two 
great  classes,  differing  from  each  other  in  respect  of  the  persons 
on  whom  tlie  duties,  which  correlate  to  the  right,  are  incumbent. 
A  person  may  have  a  right  the  essence  of  which  consists  in  the 
fact  that  all  other  persons  whatsoever  are  under  a  duty  corre- 
sponding to  the  right ;  or  he  may  have  a  right  the  essence  of 
which  consists  in  the  fact  that  the  corresponding  duty  is  incum- 
bent on  some  one  or  more  determinate  person  or  persons.  An 
example  of  the  first  class  of  rights  is  the  right  of  property  which  a 
person  has  in  or  over  a  piece  of  land  or  a  herd  of  cattle.  A II  other 
persons  whatsoever  are  bound  to  abstain  from  acts  injurious  to 
his  power  of  dealing  as  he  pleases  with  his  own.  In  other 
words,  he  may  enjoy,  use,  and,  if  he  pleases,  if  the  thing  is 
perishable,  use  up,  the  thing  which  is  the  subject^  of  the  right, 
subject  only  to  certain  general  limitations,  and  also  to  certain 
special  limitations  prevailing  in  particular  cases,  where  his  rights 
are  limited  by  conflicting  rights  possessed  by  other  persons  over 
the  same  subject  ^.  This  class  of  rights  have  received  the  name 
of  rights  in  rem,  an  expression  which  means,  not  rights  over 
things,  but  rights  available  against  all  the  world,  i.e.  where  a 
duty  is  incumbent  on  all  persons  whatsoever  to  abstain  from 
acts  injurious  to  the  right  ^. 

^  I  follow  Austin  in  speaking  of  that  over  which  the  right  is  exercised, 
usually  but  not  always  a  thing  (i.e.  a  permanent  external  object,  not  a  person, 
see  lect.  xiii).  as  the  nuhject  of  the  right.  This  seems  more  in  accordance  with 
the  ordinary  use  of  language  than  to  apply  the  word  '  subject,'  as  is  usual  with 
German  jurists,  to  the  person  possessing  the  right.  See  Austin,  ii.  p.  736. 
Sometimes  a  person  may  be  the  subject  of  a  right,  e.  g.  the  master  has  a 
right  over  the  servant  which  entitles  him  to  legal  remedies  against  any  one 
who  wrongfully  deprives  him  of  the  services  of  the  servant;  sometimes 
the  right  in  lem  cannot  be  said  to  have  any  subject  properly  so  called  at 
all,  e.g.  the  right  to  personal  security,  or  to  a  good  name  and  reputation. 
See  Austin,  i.  p.  48. 

*  See  above.  Chap.  III.  §  17. 

^  The  expression  jus  in  rem,  or  jus  in  re,  is  not  found  in  the  classical 
jurists.  The  expres.sion  '  in  rem  '  is  however  used  by  them  in  opposition  to 
'  in  personam.'  '  En  effet  I'expression  in  rem  d^signe  commundment  dans 
la  langue  du  droit  Romain,  une  disposition  gen^rrile,  sans  acception  de 
personne  :  et  I'expression  in  personam  designe  une  disposition  appliqu^e 


Place  of  the  Law  of  Beat  Property.  225 

(3)  Opposed  to  rights  in  rem,  or  rights  available  against  all 
the  world,  is  the  other  gi-eat  class  of  rights,  namely  rights  which 
are  available  only  against  some  particular  or  determinate  person 
or  persons.     These  are  called  rights  in  perso7iam,  which  is  au 
abridged  expression  for  rights  in  personam  certam  or  determin- 
atam.     The  principal,  though  not  in  our  law  the  only,  sources  of 
these  rights  are  contracts  and  injuries  \     Where  one  person  has 
entered  into  a  contract  with  another,  as,  for  instance,  when  he  is 
bound  by  a  promise  to  pay  money  due,  to  deliver  goods  on  a 
certain  day,  not  to  carry  on  a  trade  within  a  given  area,  a  legal 
tie  is  created  as  between  these  two  parties,  the  one  has  a  right 
against  the  other,  the  one  is  under  a  duty  .towards  the  other,  and 
no  third  party  or  stranger  to  the  contract  shares  either  in  the 
right  or  in  the  duty.     So  where  any  right,  wdiether  in  rem  or  in 
personam,  is  violated,  a  new  right  in  personam  arises.     If  my 
right  of  excluding  all  persons  fi'om  my  house  or  field  is  violated 
by  a  trespasser,  a  new  right  as  against  that  individual  trespasser 
accrues  to  me,  namely  a  right  to  adopt  the  appropriate  remedy 
provided  by  the  law.     So  where  a  person  is  bound  by  contract 
to  deliver  goods  on  a  future  day,  or  not  to  carry  on  a  trade 
within  a  given  area,  the  breach  of  the  contract  gives  rise  in  each 
case  to  new  and  distinct  rights,  rights  to  pursue  the  proper  legal 
remedy  against  the  wrong-doer.     It  will  be  seen  at  once  that 

specialement  a  une  personne  ddtermin^e.'  Ortolan,  Justinien,  iii.  §  1956. 
See  as  to  actiones  in  rem  and  in  personam,  above,  p.  58,  n.  i.  In  our  own 
law  a  judgment  which  is  available  in  evidence  against  all  the  world  is  called 
a  judgment  in  rem.  See  Austin,  ii.  p.  990;  and  on  the  general  distinction 
between  rights  in  rem  and  rights  in  personam,  see  i.  pp.  46,  380-389. 

*  This  points  to  the  distinction  between  what  are  called  by  Austin  primary 
and  secondary  or  sanctioning  rights.  See  i.  p.  45,  and  ii.  lect.  xlv.  The 
latter  are  those  which  arise  from  injuries  or  violations  of  primary  rights. 
The  former  class  are  those  which  do  not  arise  from  injuries,  but  are  created 
by  the  appropriate  mode  or  title  provided  by  law.  Using  'injury'  in  a 
large  sense,  the  rights  constituting  the  second  class  arise  from  violations  of 
rights  in  rem,  or  torts,  and  also  from  violations  of  rights  in  personam,  or 
breaches  of  contract  or  trust.  It  will  be  seen  that  all  rights  in  rem  and 
some  rights  in  personam  are  primary,  while  all  secondary  rights  are  rights 
in  personam. 

Q 


226  Appendix  to  Part  I.  [§  i.] 

rights  in  j)ersonam  comprise  some  of  the  most  important 
branches  of  the  law,  but  they  are  here  mentioned  only  to  be  ex- 
cluded, since  it  is  clearly  not  under  that  head  that  the  law  re- 
lating to  land  will  be  found. 

(4)  The  law  dealing  with  rights  in  rem  may  be  called — using 
the  term  '  property '  in  a  large  sense— the  law  of  property,  or 
the  law  dealing  with  property-rights.  The  word  'property' 
is  used  in  so  many  senses  ^  as  to  be  nearly  useless  for  juristic 
purposes.  One  of  its  best  known  applications  is  where 
it  is  applied  to  any  collection  of  rights  in  rem,  as  distinct  from 
rights  in  personam.  The  Eoman  lawyers  marked  the  differ- 
ence between  the  two  branches  of  law  by  the  words  dominium 
and  oUigationes.  If  the  word  'property'  were  not  so  ambiguous, 
one  might  venture  to  suggest  that  the  '  law  of  property,'  or  '  of 
property-rights,'  should  be  substituted  for  the  obscure  expression 
rights  in  rem. 

(5)  Rights  in  rem  may  be  subdivided  into  two  great  classes 
in  respect  of  their  subjects.  By  the  subject  of  a  right  is  meant 
the  thing,  if  any,  over  which  the  right  is  exercised  I  My  house, 
horse,  or  watch  is  the  subject  of  my  right  of  property.  There 
are  however  some  rights  in  rem  which  cannot  properly  be  said 
to  have  any  subjects,  or  to  be  exercised  over  any  definite  things. 
These  will  be  noticed  presently. 

(6)  The  great  distinction  next  to  be  mentioned  between  two 
classes  of  rights  in  rem,  differing  in  respect  of  their  subjects,  is 
peculiar  to  English  law  and  the  systems  derived  from  it.  In 
Eoman  law  and  the  systems  to  which  it  has  given  rise  there  is 
no  such  fundamental  distinction  between  the  law  relating  to  land 
and  the  law  relating  to  things  moveable,  as  to  necessitate  a 
separate  treatment  for  each  branch.  It  is  otherwise  in  English 
law,  and  the  outline  of  its  history  which  has  been  given  in  the 
preceding  chapters  will  account  for  this  characteristic  of  our 
system. 

*  See  the  principal  of  these  enumerated,  Austin,  ii.  pp.  817-820. 

*  See  above,  p.  224,  n.  i. 


Place  of  the  Law  of  Heal  Property.  227 

The  distinction  therefore  under  consideration  is  between 
rights  in  t-em,  which  have  for  their  subject  things  real,  that  is  to 
say,  things  immoveable — in  other  words,  land  and  all  that  is 
permanently  affixed  thereto  * ;  and  rights  in  rem,  which  have  for 
their  subject  things  personal  or  moveable  ^.  Speaking  generally, 
though  not  with  entire  accuracy,  the  former  class  of  rights  con- 
stitutes the  matter  of  the  law  of  '  real  property,'  the  latter  the 
matter  of  the  law  of  '  personal  property.'  There  is  however  one 
important  class  of  rights  over  land,  as  has  already  been  seen, 
which  belongs  to  the  categoi-y  of  personal  property  ^ 

(7)  There  is  further  a  miscellaneous  class  of  rights  in  rem 
which  cannot  be  said  to  be  rights  over  land,  or  indeed  to  have 
any  subjects  at  all,  but  which  possess  some  characteristics 
common  to  rights  over  land*.  For  instance,  such  of  them  as  are 
descendible,  devolve  not,  as  is  the  case  with  personal  property,  to 
executors  or  administrators  (see  below),  but  to  heirs.  These 
rights  therefore  are  usually  treated  along  with  rights  over  land. 
Amongst  the  principal  of  this  class  of  rights  are  advoicsons — 
advocationes,  or  the  right  of  presentation  to  an  ecclesiastical 
benefice  ^;  and  frayichises — where  '  a  royal  privilege  or  branch  of 
the  king's  prerogative  is  subsisting  in  the  hands  of  a  subject ".' 
For  example,  the  rights  to  have '  waifs,  wrecks,  estrays,  treasui-e- 
trove,  royal  fish,  forfeitures,  and  deodands  ^ '  are  franchises,  which 
must  rest  on  royal  grant,  or  prescription  which  presupposes  a 
grant.     To  this  class  too  belong  dignities,  such  as  a  peerage, 

'  Whether  or  not  a  thing  can  be  said  to  be  permanently  affixed  to  land 
is  a  frequent  subject  of  litigation,  and  there  is  a  multitude  of  cases  decid- 
ing in  particular  instances  whether  things  are  or  are  not  'fixtures,'  and 
whether  they  are  therefore  to  be  treated  as  personal  or  as  real  property. 

*  See  Blackstone,  ii.  ch.  2. 
^  See  above,  Chap.  V.  §  i. 

*  See  Blackstone,  ii.  ch.  3  ;  and  see  Coke's  note  on  the  word  'tene- 
ments '  in  the  Stat.  West.  II,  Coke  upon  Littleton,  19  b;  above,  p.  157. 

^  See  above,  p.  150,  note  i, 

*  See  Blackstone,  ii.  p.  37. 

^  See  for  the  explanation  of  these  terms,  and  the  royal  prerogative  in 
regard  to  them,  Blackstone,  i.  ch.  8. 

Q  2 


228  Appendix  to  Parti.  [§  i.J 

which  Is  ihe  subject  of  grant  by  patent  confen-ing  the  title  with 
limitations  similar  to  the  limitations  in  an  ordinai-y  conveyance 
of  land.  Peerages  may  also  be  created  by  writ  or  royal  summons 
to  attend  the  house  of  peers ;  this,  if  acted  upon,  invests  the 
person  summoned  with  a  dignity  descendible  to  his  heirs  ^  An- 
other instance  of  the  class  of  rights  in  question  is  found  in  offices 
which  are  now  seldom  hereditary.  An  office  tenable  for  life, 
such  as  a  college  fellowship,  is  considered  a  freehold  interest. 
The  class  of  rights  under  consideration  is  by  Blackstone  and 
others  included  under  the  class  of  incorporeal  hereditaments, 
together  with  another  class  which  may  be  more  conveniently  re- 
ferred to  a  diflferent  head.  I  have  therefore  marked  them  as 
Incorporeal  hereditaments  A . 

(8)  Rights  over  things  moveable,  and  rights  which,  though  not 
over  things  moveable  or  indeed  over  things  at  all,  are  yet  classed 
with  such  rights,  inasmuch  as  they  are  rights  in  rein  ^,  and,  where 
they  are  descendible,  devolve  on  executors  or  administrators  (for 
example,  patent  rights,  copyrights),  lie  beyond  the  scope  of  the 
present  treatise. 

(9)  Having  now  pointed  out  briefly  the  place  in  the  English 
system  occupied  by  rights  in  rem,  we  pass  to  the  immediate  sub- 
ject of  the  pi-esent  treatise.  At  the  head  of  his  classification  of 
rights  over  land  Blackstone  places  the  distinction  between 
corporeal  and  incorporeal  hereditaments  ^.  Unsatisfactory  as 
this  nomenclature  is,  it  points  to  a  fundamental  distinction 
between  two  classes  of  rights  in  rem  which  it  is  convenient  to 
take  at  the  outset  of  a  systematic  discussion  of  the  law  of  land. 
The  distinction  is  between  rights  over  land  which  entitle  their 
possessor  to  speak  of  the  thing  as  his  own,  and  rights  over  a 
thing  which  is  in  ordinary  language  the  property  of  another.  It 
will  be  sufficient  to  style  the  former  rights  of  oivnership,  the 
latter  rights  in  alieno  solo. 

^  See  Blackstone,  i.  p.  400.  ^  See  Austin,  i.  p.  400. 

'  Book  ii.  ch.  2.  It  should  be  remembered  that  Blackstone  in  bis 
classification  of  rights  followed  to  a  great  extent  the  masterly  'Analysis  of 
the  Law '  of  Sir  Matthew  Hale. 


Place  of  the  Laic  of  Real  Troi^erty.  229 

The  word  ownership  is  here  used  as  applicable  to  that  class  of 
rights  which  entitle  the  person  having  them  to  speak  of  the 
subject  of  the  rights  as  his  own.  The  gi-eat  characteristic  of  these 
rights,  according  to  Mr.  Austin,  is  that  the  person  having  them 
may  put  the  thing  which  is  the  subject  of  the  right  to  uses  which, 
though  not  unlimited  (for  no  rights  of  user  are  wholly  unlimited), 
are  yet  indefinite  ^  Generally  speaking,  and  within  limitations 
more  or  less  wide,  tenant  in  fee,  tenant  for  life,  tenant  for  years* 
can  use  the  thing  which  is  the  subject  of  the  right  as  he  pleases 
— can  do  what  he  will  with  his  own. 

(10)  Opposite  to  these  rights  of  indefinite  user  is  the  class  of 
rights  the  very  essence  of  which  consists  in  the  fact  that  the  person 
having  the  right  can  only  put  the  land  which  is  the  subject  of 
it  to  uses  of  a  strictly  defined  and  limited  character  ^.  A  person 
who  has  a  right  of  way  over  his  neighbour's  land  can  only  use 
the  land  for  the  pm-pose  of  crossing  it  on  foot  or  with  horses  or 
cattle,  accoi-ding  to  the  nature  of  the  right,  which  depends  on  the 
terms  of  the  original  grant  by  which  it  has  been  created,  or  on  the 
extent  to  which  the  user  has,  as  a  matter  of  fact,  been  enjoyed 
for  the  time  required  by  law  to  create  the  right.  The  rights  which 
the  creditor  has  under  certain  circumstances  over  his  debtor's 
land  may  also  be  i-eferred  to  the  class  of  rights  in  alieno  solo. 

(11)  These  rights  in  alieno  solo  comprise  a  large  portion  of  the 
rights  called  by  Blackstone  incorporeal  hereditaments  *.     In  fact 

*  See  Austin,  lect.  xlvii,  xlviii.  '  For  the  present  I  mean  by  property 
or  dominion  every  right  in  and  over  a  thing,  which  is  indefinite  in  user, 
as  distinguished  from  servitm.'    ii.  p.  821, 

*  I  do  not  forget  that  in  common  parlance  we  distinguish  between 
tenant  for  years  and  the  freeholder  by  saying  that  the  former  has  the  pos- 
session or  occupation  of  the  land,  and  tliat  the  latter  only  is  the  owner. 
But  it  is  impossible  to  attempt  to  invest  any  word  in  common  use  with  a 
technical  meaning  without  running  counter  in  some  instances  to  popular 
usao-e.  At  all  events  a  tenant-farmer  talks  of '  my  farm,'  and  has  the  ex- 
clusive right  of  possessioa. 

^  See  Austin,  lect.  xlix. 

*  The  division  of  hereditaments  into  corporeal  and  incorporeal,  though 
deeply  rooted  in  our  legal  phraseology,  is  most  unfortunate  and  misleading. 
The    confusion   is   inherited   from   the    Roman    lawyers    (see    Justinian, 


230  Appendix  to  Tart  I.  '         [§  i.^ 

the  classes  of  rights  in  aUeno  solo  styled  easements  and  profits, 
marked  Incmporeal  hereditaments  B,  together  with  those  marked 
in  the  table  as  Incorporeal  hereditaments  A,  seem  to  constitute 
the  class  of  rights  which  Blackstone  designates  by  that  name. 

(12)  Taking  incorporeal  hereditaments  in  the  narrower  sense, 
as  equivalent  to  the  classes  of  rights  in  alieno  solo  named  easements 
and  profits,  the  principal  characteristics  of  this  class  of  rights 
have  already  been  discussed  \  The  principal  rights  recognised 
by  the  law  as  easements  properly  so  called  are  rights  of  way,  i.  e. 
of  going  over  the  land  of  another  on  foot,  on  horseback,  or  with 
carriages  or  cattle,  in  a  certain  line,  or  for  certain  purposes ; 
water-courses,  for  example,  where  a  person  has  the  right  to  divert 
a  flow  of  water  to  which,  except  for  this  special  right,  the  owner 


Inst.  ii.  tit.  2),  but  has  been  made  worse  confounded  by  our  own  autho- 
rities. The  Eomans,  misled  by  the  double  sense  of  res,  unhappily  distin- 
guished res  corporales  and  res  incorporates,  the  former  being  things,  'quae 
tangi  possunt,  veluti  aurum,  vestis,'  the  latter  mere  rights,  '  quae  in  jure 
consistunt.'  It  is  obvious  that  this  is  mere  confusion,  the  two  ideas  not 
being  in  pari  materia,  or  capable  of  being  brought  under  one  class,  or  of 
foi-mino-  opposite  members  of  a  division.  Following  the  Eomans,  our  lawyers 
distinguished  between  hereditaments  as  meaning  the  actual  corporeal  land 
itself,  and  another  kind  of  hereditaments  as  not  being  the  land  itself  but 
'the  rights  annexed  to  or  issuing  out  of  the  land.'  A  moment's  reflection  is 
sufficient  to  show  that  the  distinction  is  untenable.  The  lawyer  has 
nothino-  whatever  to  do  with. the  material  corporeal  land,  except  so  far  as  it 
is  the  subject  of  rights.  It  is  the  distinction  between  different  classes  of 
rights,  and  not  between  land  on  the  one  side  and  rights  on  the  other,  that 
he  is  concerned  with.  In  such  phrases  as  '  the  land  descends  to  the  heir,' 
what  is  meant  is,  not  that  something  happens  to  the  land  itself,  but  that  a 
particular  class  of  the  ancestor's  rights  in  relation  to  the  land  descends  to 
the  heir.  The  names  '  corporeal  and  incorporeal '  are  most  unfortunate, 
because  if  by  '  corporeal'  is  meant  'relating  to  land,'  then  a  large  class  of 
incorporeal  hereditaments  are  also  entitled  to  the  name  ;  if  by  'incorporeal ' 
is  meant  that  they  are  mere  rights,  then  aU  hereditaments  are  incorporeal, 
because  the  lawyer  is  only  concerned  with  different  classes  of  rights.  In 
reality  however  it  appears  that  the  names  point  to  different  classes  of 
rights,  as  indicated  in  the  Table ;  and  in  fact,  Stephen  in  his  edition  of 
Blackstone,  5th  ed.,  vol.  i.  p.  656,  almost  confines  incorporeal  hereditaments 
to  jura  in  alieno  solo.  See  Austin,  ii.  pp.  ']o'j,  "JoS. 
1  See  above,  Chap.  III.  §  17. 


Place  of  the  Law  of  Real  Tro])erty.  231 

of  the  praedium  serviens  would  be  entitled  ;  the  right  to  dis- 
charge water  or  other  matter  upon  a  neighbour's  house  or  land  ^ ; 
the  right  to  restrain  a  use  of  land  which  obstructs  the  access  of 
lisht  and  air  to  an  '  ancient '  window. 

(13)  Of  profits,  the  principal  are  rights  of  common  of  various 
kinds,  which  have  already  been  sufficiently  dealt  with  ^ ;  rents 
(the  right  to  a  rent  issuing  out  of  the  land,  unconnected  with 
the  relation  of  landlord  and  tenant)  may  be  classed  under  the 
same  head  ^ ;  as  also  might  tithes  have  been  before  the  Act  for 
their  commutation  (6  and  7  Will.  IV,  c.  71). 

(14)  It  appears  to  be  more  accurate  to  class  creditors''  rights 
under  the  head  of  rights  in  alieno  solo  ;  though  in  the  earlier 
stages  of  our  law,  as  has  been  seen  above,  the  tendency  in  the 
case  of  mortgages  was  to  make  the  right  of  the  creditor  after 
default  absolute.  As  legal  ideas  progress  and  become  more 
refined,  the  notion  that  the  land  is  only  a  security  for  the  debt 
comes  into  prominence,  and  regulates  the  real  rights  of  the 
parties,  and  the  creditor  is  reduced  to  his  true  position  of  having 
simply  a  right  in  alieno  solo  *. 

(i5)-(i8)  The  distinctions  resting  upon  the  mode  of  devolu- 
tion of  rights  over  land,  or  between  land  the  subject  of  tenure 
properly  so  called  (15)  and  chattels  reaP  (16),  the  historical  dis- 
tinction between  freehold  (17)  and  copyhold  (18)*^,  and  the 
various  kinds  of  freeholds  resting  on  the  differences  in  the  ser- 
vices due  from  the  tenant  to  his  lord'',  have  been  sufficiently  ex- 
plained in  the  preceding  pages. 

'  '  Ut  stillicidium  vel  flumen  recipiat  quis  in  aedes  suas  vel  in  aream,  vel 
non  recipiat.'     Just.  Inst.  ii.  tit.  iii.  §  i. 

^  See  above,  Chap.  III.  §  17  (2).       *  As  to  rents,  see  above,  p.  165,  n.  2. 

*  See  above,  Chap.  V.  §  5. 

=  See  above,  Chap.  III.  §  16,  and  Chap.  V.  §  i. 

*  See  above,  Chap.  III.  §  12,  and  Chap.  V.  §  6. 
'  See  above,  pp.  36-40. 


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Apjoendix  to  Part  I.  233 

§  2.  Bights  over  Things  Real  classified  in  respect  of  their 

duration. 

The  conception  of  an  '  estate '  in  lands  is  a  peculiar  charac- 
teristic of  English  law.  It  is  regarded,  as  has  been  seen,  as  an 
interest  falling  short  of  complete  ownership,  but  capable  of  dif- 
ferences in  extent  or  duration.  Thus  where  an  interest  is  given 
to  A  for  life,  and  after  his  death  to  B  for  life,  and  after  his  death 
to  C  in  fee,  all  these  interests  are  regarded  as  estates,  varying  in 
duration  or  extent  and  in  the  time  of  their  coming  into  posses- 
sion or  enjoyment  ^.  The  interest  or  right  passes  at  once  to  the 
successive  grantees.  The  gi-antor  is  regarded,  not  as  parting 
with  the  whole  ownership  to  A,  with  a  proviso  that  after  his 
death  it  is  to  go  to  B,  and  after  his  death  to  C,  but  as  carving 
out  of  his  estate  two  smaller  interests  or  estates,  and  then  as 
having  still  the  fee  simple  or  inheritance  to  give  away,  the  grant 
of  which  exhausts  all  the  interest  in  the  lands  which  he  has  to 
bestow,  which  yet  does  not  amount  to  the  complete  ownership  of 
the  land "'.  Thus  the  fee  simple  is  regarded  as  the  largest  estate — 
the  nearest  approach  to  absolute  ownership — which  the  law 
recognises ;  an  estate  tail,  an  estate  for  life,  an  estate  for  years 
are  regarded  as  smaller  or  shorter  interests,  which  cannot  exist 
without  the  fee  simple  at  the  same  time  residing  in  some 
person  other  than  him  who  has  the  smaller  or  '  pai'ticular ' 
estate. 

The  following  classification  is  in  effect  that  given  by  Black- 
stone  in  his  chapters  on  Freehold  Estates  of  Inheritance,  Free- 
holds not  of  Inheritance,  and  Estates  less  than  Freehold  ^  It 
will  be  sufficient  to  i-efer  in  the  foot-notes  to  the  Table  to  the 
passages  in  the  preceding  chapters  where  the  various  rights  have 
been  explained.  It  should  be  observed  that  all  the  interests  in 
question  maj'  be  conditional,  i.e.  may  either  actually  come  to  an 
end,  or  be  liable  to  be  put  an  end  to  by  the  gTantor,  on  the 
happening  of  some  (specified  but  uncertain)  event  *. 

»  See  below,  Table  III. 

^  See  above,  p.  50,  and  Austin's  Jurisprudence,  ii.  p.  866. 

^  Book  ii.  chaps,  viii,  ix,  x. 

*  See  Blackstone,  book  ii.  ch.  x,  and  above,  p.  190. 


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Ajopendix  to  Part  I.  235 


§  3.  Rights  over  Things  Real  classified  in  resjpect  of  tlve  time  of 

their  enjoyment 

The  following  Tal>le  shows  the  classification  of  rights  given  by 
Blackstone  in  his  chapter  on  '  Estates  in  Possession,  Remainder 
and  Reversion  \'  In  anticipation  of  explanations  which  will  be 
given  in  Chapters  VI,  VII,  and  VIII,  I  have  thought  it  con- 
venient to  oppose  to  the  class  of  rights  in  question  arising  at 
common  law,  the  class  of  rights  of  future  enjoyment  which  do 
not  arise  at  common  law,  the  nature  of  which  it  would  be  at 
present  premature  to  discuss.  A  glance  at  the  Table  will  show 
the  strange  complication  which  prevails  in  this  branch  of  English 
law,  owing  partly  to  historical  causes,  partly  to  the  extreme 
technicality  of  lawyers  whose  minds  were  deeply  imbued  with 
the  realist  philosophy. 

'  Book  ii.  ch.  xi.     See  also  Austin's  Jurisprudence,  lect.  liii,  and  above, 
Chap.  V.  §  3. 


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PAET  II. 
THE  MODERN  LAW  OF  REAL  PROPERTY. 


CHAPTER   VI. 

ORIGIN  AND  EARLY  HISTORY  OF  USES  OR 
EQUITABLE  INTERESTS  IN  LAND. 

J.T  is  not  easy  to  discover  at  what  time  the  pi'actice  first  arose 
of  attaching  to  the  alienation  of  land  a  trust  or  confidence  that 
the  alienee  should  hold  the  lands  to  the  iise  of  the  donor,  or 
of  some  third  person  named  by  him.  "WTien  '  uses '  are  fii'st 
noticed  in  the  records  of  our  law  they  appear  as  the  result  of 
established  and  well-known  practice.  Y^'et  it  was  long  before 
the  obligation  of  a  *  use,  trust,  or  confidence '  was  recognised  by 
any  tribunal.  It  is  true  that  the  ecclesiastical  courts  at  one 
time  enforced  conscientious  obligations,  entertaining  suits  de 
fidei  laesione,  but  this  jurisdiction  had  been  taken  away  from 
them  in  cases  arising  between  laymen  as  to  civil  matters  in 
the  reign  of  Henry  III  \  If  therefore  a  feofinaent  was  made  to 
A  to  tJie  use  of  B,  or,  in  other  words,  in  trust  and  confidence  that 
A  would  permit  B  to  enter  and  occupy,  or  receive  the  fruits  and 
profits  of  the  lands,  there  were  no  legal  means  of  compelling  A 
to  carry  out  this  trust.  It  was  simply  a  conscientious  obligation. 
No  doubt  such  obligations  were  enforced  by  the  authority  of  the 
confessor,  and  regarded  with  special  favour  by  the  Church,  There 
seems  no  reason  to  question  the  common-place  of  the  text-books, 

*  Spence's  Equitable  Jurisdiction,  i.  p.  Ii8. 


240  Uses  before  27  Henry  VIII.  c.  10.  [chap. 

that  the  practice  of  giving  lands  by  way  of  use  or  trust  was 
largely  resorted  to  in  order  to  enable  ecclesiastical  corporations 
to  evade  the  Statutes  of  Mortmain  \ 

Various  conjectures  have  been  made  as  to  the  origin  of  the 
recognition  of  the  binding  character  of  a  trust,  confidence,  or  use 
thus  created.  The  clergy  from  early  times  recognised  breach  of 
faith  as  a  matter  of  which  the  ecclesiastical  courts  would  take 
cognizance.  It  is  probable  that  some  of  the  doctrines  of  Roman 
law  greatly  aided  towards  the  establishment  of  the  system  of 
uses  of  laud  as  a  definite  interest  distinct  from  the  legal  estate. 
A  strong  analogy  in  some  points  to  the  system  of  uses  is  presented 
by  the  Eomau  distinction  between  legal  and  beneficial  owner- 
ship ^.  It  was  possible  under  the  Roman  system,  before  the 
changes  introduced  by  Justinian,  for  a  thing  to  have  two  owners  ; 
first  the  legal  owner,  the  dominus  ex  jure  civili,  or  ex  jure 
Quiritium,  who  was  the  complete  owner  in  the  view  of  the  older 
law,  who  alone  could  dispose  of  or  claim  the  thing  by  the  pro- 
cesses recognised  by  the  older  law.  He  might  however  in 
certain  cases  pass  to  another  the  beneficial  ownership  without 
aff'ecting  his  own  legal  rights  in  the  view  of  the  older  law.  If, 
for  instance,  the  owner  of  a  res  mancipi — for  example,  a  slave — 
sold  the  slave  to  another,  and  to  the  completion  of  the  trans- 
action there  was  alone  wanting  the  appropriate  ceremony  of 
mancipatio — delivery  accompanied  by  certain  forms — the  legal 
title  remained  unafi"ected,  what  passed  to  the  purchaser  was 
simply  beneficial,  or,  as  it  was  barbarously  called  by  the  com- 


*  See  Blackstone,  ii.  271. 

^  Compare  Gaius,  Comin.  ii.  40 :  '  Sequitur  ut  admoneamus  apud  pere- 
grines quidem  unum  esse  dominium,  ita  aut  dominus  quisque  est,  aut 
dominus  non  intellegitur.  Quo  jure  etiam  populus  Eomanus  olim  utebatur  : 
aut  eniin  ex  jure  Quiritium  unusquisque  dominus  erat,  aut  nou  intellege- 
batur  dominus :  sed  postea  divisionem  accepit  dominium,  ut  alius  possit 
esse  ex  jure  Quiritium  dominus,  alius  in  bonis  habere.  Nam  si  tibi  rem 
mancipi  neque  mancipavero,  neque  in  jure  cessero'  [the  appropriate  modes 
of  conveyance  under  the  older  law]  '  sed  tantum  tradidero,  in  bonis  quidem 
tuis  ea  res  efficitur,  ex  jure  Quiritium  vero  mea  permanebit,'  etc. 


VI.]  Analogies  from  Rc^ian  Law.  241 

mentators,  honitarian  ownership  ^ ;  in  virtue  of  which  the 
purchaser  could  in  effect,  by  calling  in  aid  the  later  Praetorian 
jurisdiction,  assert  and  exercise  practically  all  the  rights  of  the 
real  owner,  only  he  could  not  employ  the  older  and  more 
cumbrous  procedure  of  the  jus  civile. 

This  analogy  however  does  not  carry  us  further  than  the 
separation  of  the  idea  of  legal  ownership,  or  ownership  at  the 
common  law,  from  beneficial  ownership,  that  is  ownership  un- 
recognised by  the  older  law,  but  the  advantages  of  which  can 
practically  be  asserted  by  calling  in  aid  another  power  distinct 
from  that  of  the  magistrate  enforcing  the  older  law.  The  dis- 
tinction between  the  two  kinds  of  ownership  was  abolished  by 
Justi 


inian 


2 


Another  analogy  was  found  in  the  Roman  idea  of  ususfructus^, 
or  the  right  to  the  temporary  enjoyment  of  a  thing,  as  distinct 
from  the  ownership  of,  or  absolute  property  in  it.  This  analogy 
however  fails  at  several  points.  There  is  no  binding  relation 
between  the  owner  and  the  usufructuaiy,  by  which  the  former  is 
compelled  to  hold  to  the  use  of  the  latter.  The  relation  between 
the  two  rather  resembles  that  of  a  tenant  for  life,  or  other  limited 
owner,  and  the  reversioner  in  fee. 

Another  analogy,  which  perhaps  to  some  extent  aided  in  the 
construction  of  the  class  of  rights  under  consideration,  is  found 
in  the  doctrine  oijidei  comniissa  *. 

The  legal  restrictions  on  successions  and  legacies  led  in  the 
later  period  of  the  Republic  to  the  practice  of  a  testator  insti- 
tuting an  heir,  and  at  the  same  time  requesting  him  to  dispose  of 
the  whole  or  a  portion  of  the  property  in  a  particular  way,  for 
example  to  hand  over  the  inheritance  or  a  legacy  to  a  person  who 
was  not  a  Roman  citizen,  and  therefore  by  the  strict  rule  of  the 
jus  civile  incapable  of  taking  it  directly.      Till   the   time   of 

*  The  classical   expression  for   this  beneficial  o\\Tiership  was  '  in  bonis 
habere'  (see  last  note).     Pothier,  Dig.   xli.  tit.   i.  ad  init.,  distinguishes 
between  '  dominium  bonitarium  '  and  '  in  bonis  habere.' 
^  Cod.  lib.  vii.  tit.  25,  '  De  nudo  jure  Quiritium  tollendo.' 
'  See  Just.  Inst.  ii.  tit.  4.  *  lb.  tit.  23. 

B 


242  Uses  lefore  27  Henry  VIII.  c.  10.  [chap. 

Augustus  there  appears  to  have  been  no  legal  obligation  on  the 
person  to  whom  this  trust  was  committed,  Justinian  says  of 
these  fidei-commissa,  as  they  were  called,  '  Nullo  vinculo  juris, 
sed  tantum  pudore  eorum  qui  rogahantur,  continehantur  ^.'  After- 
wards the  obligation  came  to  be  recognised  as  one  capable  of 
being  enforced  in  the  proper  court  ^,  and  a  Praetor  fidei-commis- 
sarius  was  appointed  to  administer  this  branch  of  jurisdiction. 
At  Rome  '  trusts '  could  only  be  created  by  will,  and  under  the 
later  law  the  distinction  for  all  practical  purposes  between  fidei- 
commissa  and  legacies  disappeared. 

Whatever  may  be  the  true  account  of  the  origin  of  the  recog- 
nition of  uses,  it  appears  that  the  practice  of  conveying  lands  to 
uses  prevailed  to  a  great  extent  as  early  as  the  reign  of 
Edward  III  ^  It  seems  to  have  been  not  unusual  for  lay  persons 
to  make  fraudulent  feoffments  of  their  lands  to  evade  their 
creditors.  The  result  was  that  the  creditor  could  not  have 
execution  for  his  debt,  the  land  being  in  the  hands  not  of  the 
debtor  but  of  his  feoffee.  The  transaction  being  a  collusive  one, 
the  debtor  would  receive  from  his  feoffee  the  profits  of  the  lands 
without  the  burdens  attaching  to  legal  ownership.  This  was 
restrained   by   the   statute   50   Edward   III,   c.    6*.      In   the 


*  Inst.  1.  c,  pr. 

^  'Augustus  .  .  .  jussit  consulibus  auctoritatem  suam  interponere.  Quod 
.  .   .  paulatim  conversum  est  in  assiduam  jurisdictionem,'  etc.     lb.  I. 

'  The  earliest  mention  of  the  expression  '  use  '  is  found  in  the  statute 
7  Richard  II,  c.  1 2  : — '  Et  outre  ceo  est  auxint  assentuz  qe  si  ascun  alien  eit 
purchacez  ou  desore  purchase  ascun  benefice  de  seinte  esglise,  dignite,  ou 
autre,  et  en  propre  persone  preigne  possession  dicelle,  ou  loccupie  de  fait 
deinz  mesme  le  Roialme,  soit  il  a  son  oeps  propre  ou  al  oeps  dautri'  etc. 

*  '  Item  pur  ceo  qe  diverses  gentz  inheritez  des  diverses  tenementz, 
creanceantz  diverses  biens  en  monoie  ou  en  marchandise  des  plusoxirs 
gentz  de  Roialme,  donncnt  lour  tenementz  et  chatevx  a  lour  amys  par  col- 
lusion davoir  ent  les  profitz  a  leur  volente,  et  puis  senfuent  a  la  fraunchise  de 
Westminster  ou  Seint  Martyn  le  Grant  en  Loundres  ou  autres  tielx  places 
privilegeez,  et  illoeques  vivent  long  temps  a  grant  countenance  dautry  biens 
et  des  profitz  des  ditz  tenementz  et  chateux,  tanqe  les  ditz  creditours  serront 
molt  leez  de  prender  xme  petite  parcelle  de  lour  dette  et  relesser  le  re- 
manant,  ordeigae  est  et  assentuz  qe  si  purra  estre  trovez  qe  tielx  douna 


VI.]  Posifio7i  of  cestui  que  use.  243 

reign  of  Eichard  II  a  similar  practice  seems  to  have  been 
adopted  in  order  to  protect  disseisors  and  other  wrongdoers  from 
the  claims  of  the  rightful  OA\Tiers  of  the  land  \  In  the  same 
reign  the  practice  of  evading  the  Statutes  of  Mortmain  by  giving 
lands  to  a  feoffee  to  hold  to  the  use  of  a  religious  corporation 
was  effectually  restrained  by  15  Eichard  II,  c.  5,  given  below. 
If  therefore  the  practice  of  conveying  lands  to  uses  originated  in 
the  desire  of  the  clergy  to  evade  the  Statutes  of  Mortmain,  the 
device  received  a  final  check  by  this  enactment.  It  seems,  how- 
ever, that  the  advantages  of  being  the  beneficial  instead  of  the 
legal  owner  of  lands  were  appreciated  to  such  a  degree  that  the 
practice,  although  it  ceased  to  fulfil  its  original  purpose,  became 
more  and  more  widely  spread. 

The  use  of  lands  came  to  be  regarded  as  an  interest  wholly 
distinct  from  the  legal  estate,  and  free  from  all  the  burdens 
which  attached  to  the  tenancy  at  common  law.  If  a  person  who 
had  only  the  use  of  lands,  that  is,  where  the  legal  title  was 
vested  in  another  person  who  was  seised  to  his  use,  committed 
treason  or  felony,  the  lands  were  not  subject  to  escheat  or  for- 
feiture ;  he  who  had  the  use  owed  no  dues  or  service  to  the  lord  ; 
his  creditor  could  not  take  the  lands  in  execution  for  debt  ^ ; 
nor  could  a  rival  claimant  bring  an  action  against  him  without 
the  risk  of  the  legal  owner  intervening  and  setting  up  his  own 
legal  title.  On  the  other  hand,  he  who  had  the  use  would  have 
the  full  enjoyment  of  the  lands,  the  feoffee  to  the  use  would 
allow  him  to  be  in  possession,  and  to  reap  the  profits,  and  he 
could  dispose  of  and  sell  his  interest  without  the  necessity  of  the 

soient  issint  faitz  par  collusion  qe  les  ditz  creditours  eient  execution  des 
ditz  tenementz  et  chateux  auxi  avant  come  nul  tiel  doun  nent  euste  este 
faite.'     See  2  Richard  II,  stat.  2.  c.  3. 

1  The  statute  i  Richard  II,  c.  9,  is  directed  against  the  practice  of 
persons  wrongfully  in  possession  of  land,  by  disseisin  or  otherwise,  making 
feoffinents  of  such  lands  to  persons  so  powerful  that  the  rightful  claimants 
of  the  land,  '  for  great  menace  that  is  made  to  them,  cannot  nor  dare  not 
make  their  pursuits.'  In  this  case  the  '  great  man '  would  hold  the  lands  to 
the  use  of  the  wrongdoer. 

*  Except  in  cases  within  50  Edward  III,  c.  6. 

£  2 


244  V^^^  before  27  Henri/  fill.  c.  10.  [chap. 

cumbrous  formality  of  livery  of  seisin,  or  of  any  formal  convey- 
ance. Further,  he  could  create  interest^whoUy  unknown  to  the 
common  law,  and  could  even  direct  the  devolution  of  the  interest 
by  his  will.  It  is  true  that  neither  the  interest  of  cestui  qiie  use, 
as  the  beneficiary  was  called  S  nor  that  of  his  alienee  was  pro- 
tected or  recognised  by  law;  but  in  this  case,  as  so  often  in  the 
history  of  our  law,  usage  laid  the  foundation  of  what  afterwards 
became  legal  rights,  and  uses  of  land  protected  only  by  the  obli- 
gations of  conscience  and  good  faith,  of  whicli  the  clergy  were 
the  guardians,  were  it  is  said  by  the  time  of  Heniy  V  the  rule 
rather  than  the  exception  throughout  the  country  ^ 

Thus  a  new  species  of  interest  in  lands  grew  up  wholly  out- 
side the  pale  of  those  recognised  by  the  common  law.  "What  then 
was  the  foundation  of  the  right  of  a  person  having  a  use,  or,  in 
other  words,  what  was  the  nature  of  the  obligation  incumbent 
upon  the  person  holding  to  the  use  % 

At  first,  so  far  as  is  known,  it  appears  to  have  rested  simply 
on  moral  or  religious  obligation.  Tliere  was  no  court  or  public 
functionary  of  any  kind  by  which  the  use  would  be  protected. 
The  only  external  authority  by  which  the  duty  was  enforced  was 
that  of  the  confessor.  The  common  law  courts  knew  nothing  of 
cestui  que  use,  and  the  ecclesiastical  courts  were  powerless  to 
help  him.  It  so  happened  that  at  the  very  time  at  which  the 
practice  of  conveying  lands  to  uses  was  becoming  prevalent,  a 
new  jurisdiction  was  rising  into  importance,  administering  jus- 
tice outside  the  pale  of  the  common  law.  This  was  the  juris- 
diction of  the  Chancellor. 

The  ordinary  functions  of  the  Chancellor  were  of  a  very 
ancient  date.  As  the  keeper  of  the  Great  Seal,  all  grants  and 
letters  patent  passed  under  his  supervision.     All  original  writs, 


*  If  ^,  tenant  in  fee  simple,  makes  a  feoffment  to  J?  and  his  heirs  to  the 
use  of  O  and  his  heira,  B  is  called  feoffee  to  uses,  C  cestui  que  use.  These 
names  will  in  future  be  employed  to  denote  respectively  the  bare  legal 
owner  and  the  beneficiary. 

*  See  authorities  quoted  in  Spence,  Equitable  Jurisdiction,  i.  p.  441, 
note  c. 


VI.]  The  Chancellor.  245 

by  which  actions  at  law  were  commenced,  were  issued  out  of 
Chancery  and  sealed  with  the  royal  seal.  But  in  issuing  these 
writs  the  functions  of  the  Chancellor  were  simply  ministerial. 
He  had  no  judicial  authority.  He  could  frame  no  new  \vrit  to 
meet  a  new  state  of  circumstances.  He  was  a  prominent 
member  of  the  Council,  though  subordinate  to  the  great  Justiciar 
so  long  as  that  ofl&ce  existed  \  As  time  went  on  the  position  of 
the  Chancellor  inci'eased  in  importance^.  His  close  relations 
with  the  King  armed  him  with  a  large  measure  of  the  royal 
power.  His  position  as  a  great  ecclesiastic  made  him  solicitous 
for  the  interests  of  the  Church,  and  familiar  with  the  Canon  and 
Civil   Law. 

In  early  times,  when  the  various  functions  of  the  different 
departments  of  state  were  ill-defined,  it  was  the  common 
practice  for  persons  aggrieved,  especially  when  for  any  reason 
they  could  not  avail  themselves  of  the  ordinary  process  of 
law,  to  present  petitions  to  the  Council  or  to  the  King  for 
redress.  If  a  poor  man  was  oppressed  by  one  who,  as  often 
happened,  was  powerful  enough  to  set  the  ordinary  process  of 
law  at  defiance,  the  remedy  was  to  be  sought  from  the  King  or 
the  Council,  who  alone  were  strong  enough  to  do  right.  Or 
again,  if  a  case  arose  in  which  no  wi-it  lay,  and  consequently  in 
which  there  was  no  remedy  to  be  had  at  common  law,  recourse 
could  be  had  to  the  King  or  Council  as  the  supreme  depositaries 
of  power.  It  appears  that  in  the  reign  of  Edward  I  it  became 
usual  for  the  King  to  refer  such  of  these  petitions  as  were 
addressed  directly  to  him  to  the  Chancellor.  In  the  twenty- 
second  year  of  Edward  III  a  writ  or  ordinance  was  issued 
directing  that  for  the  future  all  such  matters  as  were  of  grace 
should  be  referred  to  the  Chancellor  or  Keeper  of  the  Pi'ivy 
SeaP.  Hence  the  practice  arose  of  presenting  petitions  directly 
to  the  Chancellor,  upon  which  the   Chancellor  made  decrees, 


"  See  Dialogus  de  Scaccario,  I.  v,  Stubbs,  Select  Charters,  171. 
*  See  Spence,  Equitable  Jurisdiction,  i.  pp.  117,  334,  355. 
'  lb.  p.  337- 


34^  Uses  before  27  Eenri/  fill.  c.  10.  [chap. 

giving  or  witbholdiug  redress  according  to  principles  which 
were  certainly  not  always  those  of  the  common  law. 

This  practice,  which  dates  from  the  end  of  the  reign  of 
Edward  III,  or  the  beginning  of  that  of  Richard  II,  may  be 
taken  to  be  the  cause  of  the  rise  of  the  judicial  functions  of  the 
Chancellor.  Upon  petitions  thus  presented,  the  Chancellor 
would,  if  he  thought  fit,  issue  a  wi'it,  called  a  writ  of  subpoena, 
in  the  name  of  the  King,  commanding  the  person  complained  of 
to  appear  and  answer  the  matter  alleged  against  him  and  abide 
by  the  order  of  the  court.  This  was  called  thai  writ  of  subpoena, 
from  the  usual  addition  of  the  words  sub  poena  centum  lihrarum. 
This  penalty  however  was  not  commonly  exacted,  but  from  the 
earliest  times  it  seems  to  have  been  the  practice  to  enforce  the 
decrees  of  the  Chancellor  by  attachment,  that  is,  by  arrest  and 
imprisonment  for  contemjit  of  com't^.  Thus  the  Chancellor, 
unlike  the  courts  of  common  law,  had  power  to  order  things  to 
be  done,  to  decree  that  a  contract  should  be  performed,  that 
property  should  be  given  up,  that  a  thing  creating  a  nuisance 
should  be  removed.  From  the  writ  above  mentioned,  the 
common  expression  in  the  older  law  books  for  a  proceeding  in 
Chancery  is  a  '  writ  of  subpoena.' 

The  materials  on  which  our  knowledge  of  the  early  history  of 
the  jurisdiction  of  the  Chancellor  is  based  are  very  scanty.  But 
very  few  cases  decided  by  the  Chancellor  found  their  way  into 
the  Year  Books  ^  Amongst  the  public  records  are  some 
petitions  to  the  King  referred  to  the  Chancellor  in  the  reign  of 
Edward  I  ^.  There  have  been  also  published  three  volumes  of 
Calendars  of  Proceedings  in  Chancery  in  the  time  of  Queen 
Elizabeth,  to  which  are  prefixed  the  earliest  Petitions  to  the 
Chancellor  which  have  yet  been  discovered.     These  are  of  the 


*  See  Spence,  Equitable  Jurisdiction,  i.  pp.  338,  369. 

"  The  case  given  below  from  the  Year  Book  of  18  Edward  IV  appears 
to  have  been  decided  by  the  Chancellor  sitting  alone,  that  in  7  Edward  IV 
to  have  been  before  the  Chancellor  and  the  Judges  of  the  Common  Pleas 
and  King's  Bench. 

^  See  Lord  Campbell's  Lives  of  the  Chancellors,  vol.  i.  p.  186. 


VI.]  Deficiencies  of  the  Common  Law.  247 

date  of  Richard  II.  The  grounds  upon  which  redress  was 
sought  are  of  a  very  miscellaneous  character.  The  burden  of 
all  the  petitions  is  that  a  grievance  has  been  sustained,  for  which, 
for  one  reason  or  another,  no  remedy  can  be  had  at  the  common 
law. 

Probably  the  most  usual  ground  on  which  complaints  to  the 
Chancellor  were  based  was  that  the  person  whose  acts  were 
complained  of  was  too  powerful  to  be  touched  by  the  common 
law.  But  there  was  another  and  an  increasing  ground  for  the 
interference  of  the  Chancellor.  This  was  the  inadequacy  of  the 
common  law  to  meet  the  wants  of  an  advancing  community. 
Practices  had  arisen  giving  rise  to  what  were  considered  to  be 
rights  and  duties,  upon  the  faith  of  which  men  acted,  but  which 
yet  were  wholly  unrecognised  by  the  common  law.  An  attempt 
had  been  made  by  the  statute  of  13  Edward  I,  c.  24,  to  enable 
common  law  procedure  to  be  adapted  to  new  cases  as  they  arose. 
By  that  statute  it  was  provided  that  *  whensoever  from  hence- 
forth it  shall  fortune  in  the  Chancery,  that  in  one  case  a  writ  is 
found,  and  in  like  case  falling  under  like  law  and  requiring  like 
remedy  is  found  none,  the  clerks  of  the  Chancery  shall  agree  in 
making  the  writ,  or  the  plaintiffs  may  adjourn  it  until  the  next 
Parliament,  and  let  the  cases  be  written  in  which  they  cannot 
agree,  and  let  them  refer  themselves  until  the  next  Parliament, 
[and]  by  consent  of  men  learned  in  the  law  a  wi'it  shall  be  made, 
lest  it  might  happen  after  that  the  Court  should  long  time  fail 
to  minister  justice  unto  complainants.'  This  statute  did  not  imme- 
diately produce  any  great  effect.  The  new  writs,  though  framed 
in  the  Chanceiy,  were  adjudicated  upon  by  the  common  law 
judges,  who  were  tied  and  bound  by  precedent,  and  refused  to 
recognise  rights  which  had  never  been  recognised  before. 

There  was  therefore  abundant  room  for  a  new  tribunal. 
Conspicuous  among  the  practices  which  the  common  law  refused 
to  recognise,  but  which  still  were  commonly  observed,  was  that 
of  giving  lands  to  be  held  to  uses.  Here  therefore  was  a  field 
for  the  jurisdiction  of  the  Chancellor.  There  are  however  but 
few  traces  of  the  early  jurisdiction  of  the  Court  of  Chancery 


248  Uses  before  27  Henry  VIII.  c.  10.  [chap. 

affecting  uses  of  lands.  Nevertheless  it  is  easy  to  see  a  com- 
bination of  influences  which  brought  the  practice  under  the  pro- 
tection of  the  Chancellor.  The  obligation  being  one  morally- 
binding,  resting  on  good  conscience  and  good  faith,  would  fall 
within  his  cosnizance  as  an  ecclesiastic.  His  clerical  character, 
habituating  him  to  search  into  men's  consciences  and  motives, 
rendered  his  tribunal  far  fitter  than  a  jury  for  ascertaining  the 
intention  accompanying  the  outward  act  of  transferring  lands ^. 
The  practice  before  the  statute  of  Richard  II  would  also  recom- 
mend itself  to  him  as  beneficial  to  the  interests  of  the  Church. 
And  uses  of  lands  being  wholly  unrecognised  by  the  common 
law,  and  yet  the  practice  having  attained  the  force  of  a  custom, 
and  many  interests  depending  upon  it,  the  Chancellor  would  be 
resorted  to  as  the  depositary  of  the  undefined  prerogatives  of 
the  Crown,  in  an  age  when  the  limits  of  the  administrative, 
legislative,  and  judicial  functions  were  not  clearly  marked  out. 

So  far  however  as  any  evidence  has  yet  been  discovered,  it  is 
not  till  the  reign  of  Henry  V  that  any  application  is  recorded  as 
having  been  made  to  the  Court  of  Chancery  to  protect  uses  of 
lands.  In  the  reign  of  Henry  IV,  so  far  from  the  jurisdiction 
being  regularly  established,  the  Commons  complained  that  many 
grantees  and  feoffees  in  trust  alienated  and  charged  the  tene- 
ments granted,  for  which  there  was  no  remedy,  and  they  prayed 
that  one  might  be  provided  by  Parliament^.  In  the  reign  of 
Henry  V  occurs  the  first  complaint  of  breach  of  trust  in  the 
bills  in  Chancery  published  by  the  Record  Commission.  They 
become  more  common  in  the  reigns  of  Henry  VI  and  Edward  IV. 
It  was  during  these  reigns  that  the  jurisdiction  of  the  Court  of 
Chancery  affecting  uses  of  lands  began  to  be  systematized,  and 
to  follow  regular  rules. 

It  is  necessary  at  this  stage  to  keep  clearly  in  view  the  tv/o 
opposing  but  related  interests — that  of  feoffee  to  uses,  or,  to  use 


1  See  as  to  this  the  report  of  the  case  in  the  Year  Book,  4  Edward  IV, 
given  below. 

2  Spence,  Equitable  Jurisdiction,  i.  p.  443. 


VI.]  Feoffee  and  cestui  que  vse.  249 

#  more  modern  expression,  trustee,  and  that  of  cestui  qtie  use,  or 
the  person  beneficially  interested. 

The  feoffee  to  uses  is  alone  recognised  by  the  common  law  as 
entitled  to  the  land.  It  is  from  him  that  every  alienee  who  is 
to  take  a  lecal  interest  must  receive  his  title  ;  he,  and  he  only, 
is  recognised  as  the  tenant  to  the  lord  :  his  treason  alone  is  the 
cause  of  forfeiture ;  for  his  debts  alone  can  the  land  be  taken  in 
execution.  The  law  knows  nothing  of  any  third  person  who  is 
free  from  the  burdens  while  he  reaps  the  profits  of  the  tenancy. 

Supposing  however  that  the  feoffee  attempts  to  exercise  his 
legal  right,  by  alienating  or  charging  the  lands,  he  would,  at 
the  time  we  are  now  speaking  of,  be  restrained  from  doing  so, 
by  the  exti'a-legal,  or,  if  the  expression  may  be  allowed,  supra- 
legal  power  of  the  Chancellor, — a  power,  as  has  been  seen, 
stronger  than  the  law.  Further,  the  Chancellor  having  power 
not  only  to  restrain  wrong-doing,  but  to  command  the  per- 
formance of  acts,  will  order  the  feoffee  to  do  any  la-vvful  acts  of 
disposition  which  cestui  que  use  may  require  of  him.  He  will 
be  constrained  to  convey  his  legal  interest  to  cestui  que  use,  or 
his  heirs  or  nominees  ^ ;  to  convey  to  the  person  named  in  cestui 
que  use's  wilP;  to  make  the  provision  required  by  him  for 
his  family ;  to  make  a  portion  for  his  wife,  or  for  payment  of 
his  debts  ^ ;  and  to  prosecute  all  actions  necessary  for  the  pro- 
tection of  cestui  que  use's  interest  *. 

The  earliest  conception  of  a  use  was,  as  has  been  seen,  a  trust 


'  See  the  petition  (2)  given  below  ;  and  see  Cal.  i.  p.  xc;  ii.  pp.  xxi, 
xxviii,  xxxi,  xxxvi. 

2  Eothanhale  v.  Wychingham,  Cal.  ii.  p.  iii.  This  is  one  of  the  earliest 
cases  in  the  reign  of  Henry  V,  and  it  states  a  feoffhient  made  in  the  sixth 
year  of  Eichard  II,  the  feoffor  declaring  by  a  separate  deed  his  will  to  be 
that  after  his  death  the  feoffees  should  hold  the  lands  for  the  use  of  the 
feoffor's  wife  for  life  and  his  son  in  fee.  The  son  disposed  of  his  interest  by 
his  wiU,  and  the  object  of  the  petition  is  to  force  the  feoffees  to  carry  out 
the  dispositions  of  the  father's  settlement  and  the  son's  will.  See  also 
Cal.  ii.  p.  xxxviii  ;  i.  p.  xxi,  etc. 

^  Cal.  ii.  pp.  xxiii,  Ii. 

*  Cal.  i.  p.  xlviii. 


350  Uses  before  37  Henri/  VIII.  c.  10.  [chap. 

binding  on  the  conscience  of  the  feoffee,  a  personal  obligatioi^ 
upon  him.  It  followed  that  on  the  death  of  the  feoffee  the  heir 
who  succeeded  him  was  discharged  of  the  trust,  no  conscientious 
obligation  affecting  him  ever  having  been  created.  But  in  the 
reign  of  Edward  IV,  if  not  earlier,  the  heir  of  the  feoffee  was 
held  to  take  the  lands  subject  to  the  same  trusts  as  his  ancestor 
held  them  \  The  same  rule  was  extended  to  the  case  of  a  per- 
son taking  by  alienation  for  valuable  consideration  from  the 
feoffee,  and  having  notice  of  the  use  ^  A  purchaser  for  valuable 
considei'ation  without  notice  ^  held  the  lands  free  from  the  obli- 
gation, and  in  that  case  the  only  remedy  of  cestui  que  use  would 
be  against  the  feoffee  personally.  In  like  manner  the  lord  who 
came  into  possession  on  an  escheat,  the  creditor  upon  an  elegit, 
or  the  husband  or  wife  by  virtue  of  curtesy  or  dower,  held  the 
land  free  and  discharged  from  the  use. 

In  tracing  the  history  of  the  law  of  uses  it  is  necessary  shortly 
to  enumerate  the  chief  characteristics  of  uses  before  the  legis- 
lation to  be  noticed  in  the  next  chapter.  It  follows,  from  what 
has  been  said  as  to  the  origin  of  uses,  that  the  feoffee  to  uses 


'  See  Goold  v.  Petit,  temp.  Henry  VI  (Cal.  ii.  p.  xxxviii),  where  there 
is  a  bill  against  the  heir  of  a  person  who  had  been  enfeoffed  to  the  use  of 
the  plaintiff  for  life  to  compel  a  conveyance.  See  however  Year  Book, 
8  Edward  IV,  6 :  'And  it  was  moved  whether  a  subpoena  would  lie  against 
the  executor  or  against  the  heir  [of  feoffee  to  uses].  And  Choke  said,  that 
he  on  one  occasion  sued  out  a  subpoena  against  the  heir  of  a  feoffee  to  uses, 
and  the  matter  was  discussed  at  great  length.  And  the  opinion  of  the 
Chancellor  and  of  the  Justices  was  that  it  did  not  lie  against  the  heir, 
wherefore  he  sued  out  a  biU  in  Parliament.  'Fairfax:  Cest  matter  est 
bon  store  pur  disputer  apres  quant  les  auters  veignent.'  And  see  Year 
Book,  2  2  Edward  IV,  6  ;  where  Hussey,  Chief  Justice,  states  that  all  the 
judges  had  agreed  thirty  years  before  that  a  subpoena  would  not  lie  against 
the  heir.  The  Chancellor  however  said  that  if  the  law  was  as  stated 
by  Hussey,  '  donques  est  grand  folie  pur  enfeofFer  autres  en  mon 
terra.' 

^  Year  Book,  5  Edward  IV,  7b:  '  If  J.  enfeoflfed  A.  to  his  own  use,  and 
A.  enfeoffed  R.,  although  he  purchased  for  valuable  consideration,  if  A. 
gave  R.  notice  of  the  intent  of  the  first  feoffment,  he  (R.)  is  bound  under 
pain  of  a  writ  of  subpoena  to  perform  the  will  of  J.' 

'  If  no  valuable  consideration  passed,  notice  of  the  use  was  implied. 


VI.]  Equity  foUoivs  the  Law.  251 

must  be  an  individual  capable  of  the  conscientious  obligation. 
Hence  a  body  corporate  is  incapable  of  holding  to  the  use  of 
any  one.  Nor  were  aliens,  or  persons  attainted,  or  the  king  \ 
capable  of  holding  to  a  use. 

The  Court  of  Chancery  in  establishing  rules  regulating  the 
interest  of  cestui  que  use  in  some  respects  followed  the  rules  of 
law,  in  others  departed  from  them.  '  Equity  follows  the  law ' 
in  respect  of  uses,  principally  in  holding  these  interests  to  be 
subject  to  the  same  rules  as  to  the  duration  and  devolution  of 
the  estate,  as  in  the  case  of  the  legal  interest.  For  instance,  if 
a  feoffment  be  made  to  B  and  his  heirs  to  the  use  of  G  and  his 
heirs,  or  to  the  use  of  C  and  the  heirs  of  his  body,  or  to  the  use 
of  C  for  life,  or  to  the  use  of  G  for  ten  years,  G  would  have  an 
equitable  estate  in  fee  which  would  descend  to  his  eldest  son,  or 
to  all  his  sons  in  gavelkind  lands,  or  to  his  youngest  in  borough 
English  ^ ;  or  an  estate  tail,  which  might  be  further  limited  so  as 
to  be  an  estate  in  tail  special  or  general,  male  or  female;  or  an 
estate  for  life ;  or  an  estate  for  years,  which  upon  G's  dying 
within  the  term  would  devolve  upon  his  executors  ^. 

On  the  other  hand,  the  wife  or  husband  of  cestui  que  use  was 
not  entitled  to  dower  or  curtesy  *,  nor  was  the  lord  entitled  to 
escheat  on  failure  of  heirs,  nor,  except  so  far  as  certain  changes 
were  introduced  by  legislation,  was  the  king  entitled  to  forfeiture, 
or  the  creditor  to  take  the  lands  in  execution  ^. 

But  the  widest  difference  between  the  rules  of  common  law 
and  those  which  prevailed  in  the  Court  of  Chancery  is  to  be 

*  Gilbert  on  Uses,  ch.  i.  sect.  i.  It  was  to  avoid  the  consequences  of 
this  rule  that  it  was  provided  by  the  statute  i  Ricliard  III,  c.  5,  that 
where  Richard  was  enfeofiFed  to  uses  jointly  with  other  persons  the  land 
should  vest  in  the  co-feofFees ;  where  he  was  the  sole  feoflFee,  it  should  vest 
in  cestui  que  use.     Blackstone,  ii.  p.  332. 

2  '  If  tenant  in  borough  English  enfeoffed  one  to  the  use  of  himself  and 
his  heirs,  the  younger  son  shall  have  the  subpoena,  and  not  the  heir 
general.'     Year  Book,  5  Edward  FV,  7  b. 

3  Sugden's  Gilbert  on  Uses,  ch.  i.  sect.  2.  i. 

*  lb.  pp.  48,  49. 

5  lb.  ch.  i.  sect.  2.  5,  6. 


252  Uses  before  27  Henri/  VIII.  c.  10.  [chap. 

found  in  the  manner  in  which  uses  of  lands  could  be  created  or 
transferred.  The  simplest  and  most  ordinary  way  of  creating  a 
use  has  already  been  referred  to.  For  example,  A,  tenant  in 
fee  simple,  makes  a  feoffment  to  B  and  his  heirs,  to  the  use  of 
C  and  his  heirs.  Uses  might  also  be  created  by  a  fine  or  re- 
covery levied  or  suffered  to  an  expressed  use.  In  these  cases 
uses  are  said  to  be  created  by,  or  rather  to  arise  in  connection 
with,  transmutation  of  possession'^ ;  that  is,  they  accompany  one 
of  the  recognised  modes  of  conveying  the  seisin  at  common  law 
— feoffment,  fine,  or  recovery.  An  expression  of  the  intention 
of  the  donor  that  the  donee  should  hold  the  lands  granted  to 
certain  uses,  was  sufficient  to  burden  the  donee  with  the  duty  of 
holding  to  the  use  of  cestui  que  tise. 

But  in  some  cases  uses  were  said  to  be  raised  by  implication ; 
that  is,  though  no  use  was  expressed  in  the  grant,  yet  the  cir- 
cumstances were  such  that  tlje  Chancellor  would  declare  that 
the  donor  intended  the  donee  to  hold,  not  for  his  own  benefit, 
but  as  donee  to  uses.  This  arose  principally  in  the  case  where 
the  feoffment  or  other  conveyance  was  made  without  considera- 
tion, that  is,  without  an  adequate  motive.  In  this  case  the 
doctrine  of  the  Court  of  Chancery  was  that  the  intention  of  the 
donor  must  have  been  that  the  donee  should  hold  not  for  his 
own  benefit,  but  for  the  use  and  benefit  of  the  donor.  The  use 
was  said  to  result  or  come  back  to  the  donor  ^.  Two  kinds  of 
consideration  alone  were  regarded  as  affording  a  sufficient  motive; 
these  were  hlood  or  money.  Blood,  or,  in  other  words,  natural 
affection  felt  towards  a  near  relative,  would  be  sufficient  to  vest 
in  a  son,  brother,  nephew,  or  cousin,  the  beneficial  as  well  as  the 
legal  interest,  if  the  intention  of  the  donor  be  expressed  in  a 
deed^  This  however  commonly  took  the  form  of  a  covenant  to 
stand  seised,  to  be  presently  noticed.  The  other  consideration 
was  money*,  and  here,  so  long  as  the  conveyance  is  expressed  to 
be  made  for  a  money  consideration,  the  amount  is  immaterial; 

1  Sugden's  Gilbert,  ch.  i.  sect.  5,  and  Introduction,  p.  xlvii. 

2  lb.  ch.  i.  sect.  5.  i  ;  sect.  6,  p.  117. 

3  lb.  p.  92,  *  lb.  p.  94. 


VI.]  Modes  of  Creation  and  Transfer.  253 

it  is,  at  all  events,  sufficient  evidence  of  the  intention 
of  the  donor  to  part  with  the  beneficial  as  well  as  the  legal 
interest  in  the  lands.  If  no  proper  evidence  of  either  of  these 
motives  existed,  the  beneficial  interest  resulted  or  came  back  to 
the  donor.  It  was  in  fact  only  an  instance  of  the  practice  which 
seems  to  have  become  very  common  about  the  time  of  the  Wars  of 
the  Roses,  so  that  '  the  use  of  the  country  to  deliver  lands  to  be 
safely  kept  has  made  the  mere  delivery  of  possession  no  evi- 
dence of  right  without  a  valuable  consideration  ^.'  This  how- 
ever did  not  apply  to  the  case  of  a  grant  for  life  or  years. 

Uses  raised  by  transmutation  of  possession  are  distinguished 
from  uses  raised  without  any  such  transmutation.  Under  cer- 
tain circumstances  a  person,  though  he  had  done  nothing  which 
would  be  regarded  at  common  law  as  a  parting  with  his  legal 
intei-est,  was  constrained  by  the  Chancellor  to  hold  to  the  use 
and  benefit  of  another.  This  arose  principally  in  the  two  cases 
of  bargains  and  sales,  and  of  covenants  to  stand  seised. 

A  bargain  and  sale  was  where  the  legal  owner  entered  into 
an  agreement  with  a  purchaser  for  the  sale  to  him  of  his  interest, 
and  the  purchaser  paid,  or  promised  to  pay,  the  money  for  the 
land.  The  transaction  at  law  would  not  be  complete  without 
a  legal  conveyance ;  but  in  Equity  a  use  was  '  raised '  in  favour 
of  the  purchaser,  the  bargainor  was  in  the  view  of  the  Chan- 
cellor the  bare  legal  owner,  holding  to  the  use  and  for  the  benefit 
of  the  bargainee  ^. 

A  covenant  to  stand  seised  was  where  a  person  agreed  to  stand 
seised  to  the  use  of  some  near  relation — son,  brother,  nephew, 
or  cousin.  In  this  case  the  consideration  of  natural  affection 
was  sufficient  to  raise  a  use  in  favour  of  the  covenantee  ^. 

When  by  any  of  the  above  methods  the  interest  of  cestui  que 
use  had  been  created,  that  interest  might,  without  any  formality, 
by  words  or  acts  evidencing  the  intention,  be  transferred  by 
cestui  que  use  to  any  one  capable  of  taking  a  use. 


>  Gilbert  on  Uses,  p.  125.  *  lb.  pp.  94-98. 

^  lb.  pp.  92-94. 


254  Uses  hefore  27  He^irt/  VIII.  c.  10.  [chap. 

Another  mode  by  which  uses  could  be  raised  or  transferred 
•was  by  will.  An  instance  will  be  found  below  of  a  feoffment 
made  on  a  death-bed  to  the  use  of  a  will.  After  the  death  of  the 
feoffor  the  feoffee  would  be  constrained  to  hold  to  the  uses  de- 
clared. Thus  if  A  makes  a  feoffment  to  B  and  his  heirs  to  the 
uses  declared  by  his  last  will,  and  declares  a  use  in  favour  of 
G  and  his  heirs,  the  use  would,  until  A's  death,  result  or  come 
back  to  him.  Upon  A's  death  G  could  claim  by  virtue  of  the 
will  to  be  the  equitable  or  beneficial  owner.  So  a  use  vested 
in  cestui  qtie  use  could  be  devised  by  him.  For  example,  cestui 
que  use  devises  that  his  feoffees  should  alien  the  land  for  pay- 
ment of  his  debts,  the  creditors  may  compel  them  in  the  Court 
of  Chancery  to  do  it  \  Thus  by  the  medium  of  uses  the  power 
of  disposing  of  interests  in  lands  by  will  was  for  all  practical 
purposes  regained,  and  was  so  firmly  established  as  to  withstand 
the  attempt  made  in  the  reign  of  Henry  VIII  to  restrain  it  by 
legislation.  It  should  be  remembered  that  no  formality,  not 
even  writing,  was  required  to  establish  a  will;  any  evidence  of  the 
expression  of  the  intention  of  a  testator  would  be  sufficient  to 
raise  a  use  by  which  the  next  legal  owner  would  be  bound. 

Various  consequences  as  to  the  capacity  of  dealing  with  the 
beneficial  interest  in  lands  followed  upon  the  introduction  of 
uses  besides  those  above  pointed  out.  Of  these  the  most  im- 
portant were — (i)  that  a  man  might  convey  the  beneficial 
interest  in  lands  to  himself.  This  practice,  as  has  before  been 
observed,  was  largely  resorted  to  in  troublous  times  when  a 
freehold  tenant  wished  to  retain  the  benefits,  and  escape  the 
burdens,  attaching  to  the  legal  estate  in  lands.  (2)  A  man 
mio'ht  convey  a  beneficial  interest  to  his  wife.  The  Chancellor 
did  not  consider  himself  bound  by  the  stringent  doctrine  of  the 
common  law  that  a  married  woman  was  incapable  of  holding 
separate  property.  A  use  declared  in  favour  of  a  woman  would 
be  enforced  whether  the  woman  was  married  at  the  time  or 
married  afterwards.     Thus  it  became  a  common  practice  for 

'  Sugden's  Gilbert,  p.  75. 


VI.]  Consequences  of  Uses.  255 

a  man  upon  his  mai-riage  to  convey  lands  to  feoffees  to  the 
joint  use  of  himself  and  his  wife  for  life  or  in  tail,  by  which 
means  a  provision  for  the  remainder  of  her  life  was  secured 
to  the  Avife.  This  was  called  a  jointure.  Before  the  Statute 
of  Uses,  mentioned  in  the  next  chapter,  the  wife  might  have 
claimed  dower  in  addition  to  this  provision ;  by  that  Statute, 
however,  when  provision  was  made  for  the  wife  by  jointure, 
she  was  put  to  her  election  whether  she  would  claim  dower 
or  jointure,  but  was  not  allowed  to  claim  both.  Thus  were 
laid  the  foundations  of  one  of  the  principal  classes  of  rights 
created  by  the  Court  of  Chancery,  the  Equitable  Estate  of 
Married  Women  ^ 

(3)  Interests  in  lands  too  might  be  created  by  way  of  use  to 
commence  and  terminate  at  times  and  in  ways  which  the  doc- 
trines of  the  common  law  would  not  permit.  It  has  already  been 
seen  that  where  one  person  desired  to  convey  lands  to  another 
at  common  law,  he  must  do  so  either  by  feoffment  with  livery 
of  seisin  ^,  which  was  the  regular  mode  of  transfer,  or  by  the 
fictitious  processes  of  fine  or  recovery  ^,  or  by  conveying  a 
particular  estate  by  lease  for  years  and  entry,  or  by  lease  for 
life  with  livery  of  seisin  followed  by  a  release  of  the  rever- 
sion to  the  lessee,  or  a  grant  of  it  to  a  third  person,  in 
which  latter  case  the  lessee  for  years  must  attorn  to  the 
grantee  of  the  reversion  in  order  to  complete  the  grant*. 
The  foundation  of  all  these  modes  of  conveying  interests 
in  lands  was  open  and  notorious  transfer  of  possession ; 
the  point  at  which  the  freehold  interest  passed  out  of  the 
grantor  and  vested  in  the  gi'antce  was  marked  by  an  actual 
change  of  possession  (unless  indeed  the  grantee  was  already 
in  actual  possession),  or,  in  the  case  of  a  fine  or  recovery, 
by  an  acknowledgment  in  open  court.  Thus  it  was  that 
freehold  interests  to  take  effect  in  possession  or  enjoyment  \ 
at  a  future  time  could  only  be  created  by  way  of  remainder,P^ 

^  Sugden's  Introduction  to  Gilbert,  p.  xlviii. 

*  See  above,  Chap.  III.  §  ii. 

^  See  above,  Chap.  II.  §  7  ;  Chap.  V.  §  2. 

*  See  above,  Chap.  V.  §  3,  (i). 


256  Uses  he/ore  27  Henr^  VIII.  c.  10.  [chap. 

as  has  been  explain  ed  in  the  fifth  chapter.  No  such  rule,  how- 
ever, restricted  the  freedom  of  the  Chancellor  in  enforcing  uses. 
There  was  no  reason  why  the  intention  of  the  donor  should  not 
be  carried  into  effect  at  a  future  period.  Thus  a  feoffment  to 
A  and  his  heirs,  and  after  next  Christmas  to  the  use  of  B  and 
his  heirs,  would  be  carried  out  according  to  the  expressed  inten- 
tion of  the  donor.  So  a  use  might  be  raised  on  the  happening 
of  any  future  event,  or  the  expiration  of  any  sj^ecified  time. 
Thus  while  at  common  law,  as  was  pointed  out  in  the  last 
chapter,  a  fee  could  not  be  limited  after  a  fee,  this  might  in  effect 
be  done  with  the  use.  A  conveyance  to  A  and  his  heirs  so  long 
as  he  continued  unmarried,  and  upon  his  marriage  to  the  use  of 
B  and  his  heirs,  would  cause  the  use  upon  the  happening  of 
the  event  to  arise  and  spring  up  and  vest  in  ^ ;  in  other  words, 
A,  upon  his  marriage,  while  remaining  legal  owner,  would  be 
constrained  by  the  Chancellor  to  hold  to  the  use  of  B.  Thus  a 
power  was  acquired  of  creating  future  interests  in  lands  and  of 
causing  interests  in  lands  to  be  shifted  and  to  pass  from  one  person 
to  another,  which  was  unknown  to  the  common  law,  and  which, 
as  will  be  seen  in  the  next  chapter,  gave  rise  to  the  complicated 
system  of  conveyancing  which  prevails  at  the  present  day. 

1 .    15  KiCHARD  II,  cap.  V  \ 

Item  come  contenuz  soit  en  lestatut  de  Eeligiouses  ^,  qe  null 
religious  nautre  queconqe  achate  ne  vende,  ou  souz  colour  de 
doun  ou  terme  ou  dautre  title  queconqe  dascun  resceive,  ou 
dascun  en  ascune  manere  par  art  ou  par  engyn  a  luy  face  ap- 
proprier  ascunes  terres  ou  tenementz,  sur  forfaiture  dycelles,  par 
quoi  les  ditz  terres  et  tenementz  purront  en  ascune  manere 
devenir  a  mort  mayn ;  et  qe  si  ascun  religious  ou  ascun 
autre  veigne  eucontre  le  dit  estatut  par  art  ou  par  engyn  en 
ascune  manere,  bien  Use  au  roi  et  as  autres  seignurs  les  ditz 
terres  et  tenementz  entrer,  sicome  en  le  dit  estatut  est  con- 
tenuz plus  au  plein  ;  et  ore  de  novell  par  sotile  ymagination 
et  par  art  et  engyn  ascuns  gentz  de  religion,  parsons,  vikers, 
et  autres  persones  espiritiels  sont  entrez  en  diverses  terres  et 
tenementz  adjoignantz  a  lour  esglise,  et  dycelles  par  suffrance 

^  See  above,  p.  243.  '  See  Chap.  IV.  §  2. 


VI.]  1^  Richard  II.  c.  ^.  257 

et  assent  de  tenantz  ont  fait  cimiters,  et  par  bulles  del  appo- 
stoill  les  ont  fait  dedier  et  sacrcr,  et  sepulture  jjarocliiele  font 
continuelmcnt  eu  ycelles  sanz  licence  du  roi  et  des  chiefs 
seignurs ;  declare  est  en  cest  parlement  qe  ce  est  overte- 
meut  en  cas  du  dit  estatut.  Et  en  outre  accordez  est  et 
assentuz  qe  toutz  ceux  qe  sont  possessionez  par  feoffement  ou 
par  autre  voie  al  oeps  de  gentz  de  religion  ou  autres  persones 
espiritiels  des  terras,  teneraentz,  fees,  advoesons,  ou  autres  pos- 
sessions queconqes,  pur  les  amortiser,  et  dont  les  ditz  religiouses 
et  persones  espiritiels  preignent  les  profitz,  qe  parentre  cy  et 
le  fest  de  Saint  Michel  prochein  venant  ils  les  facent  estre 
araortisez  par  licence  du  roi  et  des  seignurs,  ou  autrement 
qils  les  vendent  et  alienent  a  autre  oeps  parentre  cy  et  le  dit 
fest,  sur  peine  destre  forfaitz  au  roi  et  as  seignurs,  solonc  la 
fourme  de  lestatut  de  religious,  come  tenementz  purchasez  par 
gentz  de  religion,  et  qe  de  cest  temps  enavant  null  tiel  purchase 
se  face,  issint  qe  tielx  religiouses  on  autres  persones  espiritiels 
ent  preignent  les  profitz  come  desuis  sur  la  peine  avauntdite. 
Et  mesme  cest  estatut  sextende  et  soit  tenuz  de  toutz  terres, 
et  tenementz,  fees,  advoesons,  et  autres  possessions  purchacez, 
et  a  purchasers  al  oeps  des  glides  et  fi-ateruitees,  Et  enoulre  est 
assuntuz  pur  ce  qe  mairs,  baillifs,  et  communes  de  citees, 
burghs,  et  avitres  villes,  qont  commune  perpetuel  et  autres  qont 
offices  perpetuels  sont  aussi  perpetuels  come  gentz  de  religion, 
qe  de  cest  temps  enavaunt  ils  ne  purchacent  a  eux  et  a  lour 
commune  ou  office  sur  la  peine  contenue  en  la  dit  estatut  de 
religiouses.  Et  de  ce  qe  autres  sont  possessionez  ou  sen-a  pur- 
chacez en  temps  avenir  a  lour  oeps,  et  ils  ent  preignent  ou 
prendront  les  profitz,  soit  semblablement  fait  come  devaunt  est 
dit  de  gentz  de  religion. 

Translation. 

Whereas  it  is  contained  in  the  statute  De  Religiosis,  That  no 
religious,  nor  other  whatsoever  he  be,  do  buy  or  sell  or  under 
colour  of  gift,  or  term,  or  any  other  manner  of  title  wliatsoever, 
receive  of  any  man,  or  in  any  manner  by  [gift']  or  engine  cause 
to  be  appropriated  unto  him  any  lands  or  tenements,  upon  pain 
of  forfeiture  of  the  same,  whereby  the  said  lands  and  tenements 
in  any  manner  might  come  to  mortmain ;  and  if  any  religious, 
or  any  other,  do  against  the  said  statute  by  art  or  engine  in  any 
manner,  that  it  be  lawful  to  the  king  and  to  other  lords  upon 
the  said  lands  and  tenements  to  enter  as  in  the  said  statute 
doth  more  fully  appear  ;  and  now  of  late  by  subtile  imagination 

'  craft. 
S 


258  Uses  before  27  Kenry  VIII.  c.  10.  [chap. 

and  by  art  and  engine  some  religious  persons,  parsonB,  vicars, 
and  other  spiritual  persons,  have  entered  in  divers  lands  and 
tenements,  which  be  adjoining  to  their  churches,  and  of  the  same, 
by  sufferance  and  assent  of  the  tenants,  have  made  church  yards, 
and  by  bulls  of  the  Bishop  of  Rome  have  dedicated  and  hal- 
lowed the  same,  and  in  them  do  make  coutinually  parochial 
burying  without  licence  of  the  king  and  of  the  chief  lords ; 
therefore  it  is  declared  in  this  Parliament,  That  it  is  manifestly 
within  the  compass  of  the  said  statute  ;  and  moreover  it  is 
agreed  and  assented,  that  all  they  that  be  possessed  by  feoffment 
or  by  other  manner  to  the  use  of  religious  people,  or  other 
spiritual  persons,  of  lands,  or  tenements,  fees,  advowsons,  or  any 
manner  other  possessions  whatsoever,  to  amortise  them,  and 
whereof  the  said  religious  and  spiritual  persons  take  the  profits, 
that  betwixt  this  and  the  feast  of  St.  Michael  next  coming  they 
shall  cause  them  to  be  amortised  by  the  licence  of  the  king  and 
of  the  lords,  or  else  that  they  shall  sell  and  aliene  them  to  some 
other  use,  between  this  and  the  said  feast,  upon  pain  to  be  for- 
feited to  the  king  and  to  the  lords,  according  to  the  form  of  the 
said  statute  of  religious,  as  lands  purchased  by  religious  people  ; 
and  that  from  henceforth  no  such  purchase  be  made,  so  that 
such  religious  or  other  spiritual  persons  take  thereof  the  profits 
as  afore  is  said  upon  pain  aforesaid ;  and  that  the  same  statute 
extend  and  be  observed  of  all  lands,  tenements,  fees,  advowsons, 
and  other  possessions  purchased  or  to  be  purchased  to  the  use 
of  guilds  or  fraternities.  And  moreover  it  is  assented,  because 
mayors,  bailiffs,  and  commons,  of  cities,  boroughs,  and  other 
towns  which  have  a  perpetual  commonalty,  and  others  which 
have  offices  perpetual,  be  as  perpetual  as  people  of  religion,  that 
from  henceforth  they  shall  not  purchase  to  them  and  to  their 
commons  or  office  upon  pain  contained  in  the  said  statute  De 
Religiosis.  And  whereas  others  be  possessed,  or  hereafter  shall 
purchase  to  their  use,  and  they  thereof  take  the  profits,  it  shall 
be  done  in  like  manner  as  is  aforesaid  of  people  of  religion. 

2.  The  following  three  cases  are  taken  from  the  volumes  of 
Calendars  of  Proceedings  in  Chancery  above  referred  to.  The 
first  is  interesting,  as  being  the  earliest  recorded  case  of  an 
application  to  the  Chancellor  to  enforce  a  feoffment  to  uses. 
The  points  which  the  cases  illustrate  have  already  been  suffi- 
ciently dwelt  upon. 


vi]  Extracts  from  Calendars.  259 


(i)  Proceedings  in  Chancery  in  the  reign  of  Henry  Y.  William 
Dodd  V.  John  Browning  and  anotli^r.  (Calendar  of  Pro- 
ceedings in  Chancery,  i.  p.  xiii.) 

To  my  worthy  and  gracious  Lord  Blsshope  of  Wyncliester, 
Chancellor  of  Yngelond. 

Beseching  mekely  youre  poore  bedeman  William  Dodde, 
charyoteer,  wheche  passed  over  the  see  in  service  with  our  liege 
lord,  and  was  oon  of  his  charioteiys  in  his  viages;  and  of  hyze 
treste  ffefed  in  my  land  John  Brownyng  and  John  ...  of 
Chekewell  ^  with  my  wyfe,  wheche  John,  and  John  afterwards 
azenste  my  Avyll  and  wetynge  pot  my  land  to  ferme,  and  delyvered 
my  mevable  good  the  valewe  of  xx  marke  where  hem  leste,  and 
thus  they  kepe  my  dede  and  the  indenture  with  my  mevable 
good  unto  myne  undoynge,  lasse  than  y  have  youre  excylent 
and  gracious  helpe  and  lordship ;  besechinge  yow  at  reverence 
of  that  worthy  Prince  ys  sowle  youre  fader,  whoos  bedeman  y 
am  ever,  that  ye  woU  sende  for  John,  and  John  afforseide,  that 
the  cause  may  be  knowe  why  they  withholde  my  good  to  myne 
undoynge;  also  wheche  am  undo  for  brusinge  in  service  of  our 
liege  lorde,  and  in  service  of  that  worthy  Princesse  my  lady  of 
Clarence,  and  ever  wolde  yef  my  lemys  myght  serve  worthy 
prince  sone.  At  reverence  of  God  and  of  that  pereles  Princes 
his  moder  take  this  matter  at  hert  of  almes  and  charite. 

(2)    William  of  Arundel,  Esq.  v.  Sir  Maurice  Berkeley,  Knight, 
and  others.     {Calendar,  i.  p.  xxxv.     Temp.  Henry  VI.) 

Besechith  mekely  William  of  Arundell  esquyer  that  for  as 
moche  as  John,  somme  tyme  Lord  of  Arundell,  and  of  Mau- 
travers  his  fader,  wham  God  assoile,  enfeoffed  Robert  Lord 
Ponyngges  and  William  Ryman  yet  on  lyve,  and  dyverse  other 
persons  uowe  dede,  yn  his  manors  of  Hyneford,  Spertegrove, 
Stoketristre,  Cokelyngton,  Bayford,  and  Lyghe  yn  the  counte  of 
Somerset  wyth  the  officis  of  the  kepyng  of  the  forest  of  Sele- 
wode  yn  the  same  counte,  to  the  entent  that  the  said  feoffees 
should  performe  his  wille,  whiche  he  would  afterward  declare 
touchynge  the  seid  manors  and  officis.  And  afterward  by  his 
dede  ensealed  w}1;h  the  seale  of  his  armys,  declarid  his  seid  wille 

*  Feoffees  to  uses. 
S  2 


,36o  Uses  lefore  27  Hen.  Fill.  c.  10.  [chap. 

toucliynge  the  seid  manors  and  officis  forseid,  yn  soche  forme  as 
the  seid  nowe  besecher  owyth  to  have  the  forseid  manors  and 
officis  to  hym  and  to  the  heirs  of  his  body  comyng;  as  by  the 
seid  dede  of  dech^racion  of  his  wille  hit  pleynly  may  appere.  And 
afterward  the  seid  late  Lord  of  Arundell  dyed ;  after  whos  deth 
John  late  Erie  of  Arundell  his  sone  and  heii-,  the  seid  feoffment 
notwythstondyng,    entred   yn  the   seid   manors   and  occupyed 
the  seid  office,  enclaymyng  the  same  manors  and  office  as  sone 
and   heir;  and  than   of  the  same  manors  and  office  enfeoffed 
Mores  Berkeley  knyght,  John  Hody,  William   Sydeney,  John 
Lylye  and  John  Grendon  clerk  yn  fee,  to  the  entent  to  performe 
his  wille,  the  whiche  he  wolde  afterward  declare,  touching  the 
seid  manors  and  office.     And  afterward  by  his  lettur  wreten 
wyth  his  oune  hand  at  Rone,  yn  Seynt  Martyn's  day,  the  yere 
of  the  reigne  of  oure  soverayn  Lord  the  Kyng  that  nowe  is  the 
xiii,  dyrecte   unto    Alianore  countesse  of  Arundell  his  moder, 
and  also  lady  and  moder  to  the  seid  besecher,  declared  openly 
that  hit  was  his  wylle  \  that  a  state  shoulde  be  made  to  the  seid 
besecher  his  bi'other,  yn  all  the  said  manors  and  office,  accord- 
ing to  the  wille  of  his   seid  fader,  yn  the  most  surest  wyse; 
which  writyng  nought  vvithstondyng,  and  that  the  seid  besecher 
hath  ofte  tymys  requyred  the  forsaid  Morys  and  his  seid  coo- 
feoffees  to  have  made  a  state  of  the  forseid  manors  and  office  to 
the  same  besecher,  and  to  his  heirs  of  his  body  begete,  accoi'dyng 
to  the  willes,  as  well  of  his  seid  lord  and  fader,  as  of  his  forseid 
lord  and  brother;  whiche  the  seid  Mores  and  his  seid  coofeoffees 
have  all  weye  refusid  and  yet  refuse  to  doo,  to  the  lykly  dis- 
heritaunce  of  the  seid  besecher,  but  yf  he  be  remedyet  by  youre 
gracious  lordship,  hit  lyke  youre  seid  Lordship  to  sendc  by  a 
serjaunt  of  armes  for  the  seid  Moris,  and  his  said  cofeoffees,  now 
beyng  yn  London,  to  appere  afore  you  yn  the  Kyngis  Chauncery, 
at  a  day  by  yowe  to  be  lymeted,  and  than  there  to  be  examynyd 
of  all  the  matters  forsaid,  and  thereuppon  to  compelle  tham  to 
make  a  sufficiant  and  suere  astat  of  all  the  seid  manors  and  office 
to  the  said  besecher,  and  to  the  heirs  of  his  body  comyng,  for 
the  love  of  God,  and  yn  the  wey  of  charite. 


*  Notice  the  informal  character  of  these  early  wUls.  In  one  case  it  is  a 
deed  of  declaration  of  trust,  in  the  other  a  letter  that  is  considered  to 
operate  as  a  will.     See  below,  Chap.  VIII. 


VT.]  Extracts  from  Calendars.  261 


(3)  Examination  hy  the  Bishop  oj  Bath  and  Wells,  Chancellor 
of  England,  of  two  persons  to  whom  one  Robert  Crody  had 
made  a  feoffment  hy  parol,  on  his  death-bed,  in  trust  for  his 
wife  for  life,  with  remainder  to  his  daughter  in  tail.  {Cal. 
vol.  a,  p.  xliii.) 

Be  it  hade  in  mynde  that  the  x.  day  of  August  the  reigne  of 
Kynge  Heury  the  syxt  after  the  Conquest  xv'i^,  John  Gover 
of  Wyntenayse  Hei-eteley  in  the  shire  of  Suthampton,  husbond- 
man,  and  Thomas  Attemore  of  the  same  toune,  husbondman, 
apperyng  afore  the  right  reverent  Fader  in  Gode  the  Bisshop  of 
Bath  and  Welles  Chaunceller  of  Ingelond,  in  his  manoir  of  Dog- 
mersfeld,  and  ther  examined  severally  uppon  a  certein  feffe- 
ment  made  to  thayme  by  one  Robert  Ci'ody  of  certeyn  londes 
and  tenements  in  the  toune  afore  especified,  sayde  and  confessyd 
ther  expressely  by  there  othes  upon  a  boke;  howe  that  the 
saide  Eobert,  the  Wednesday  nyxt  after  the  fest  of  Seint  Michell, 
the  yere  of  the  reigne  of  Kynge  Henry  the  fyfte  after  the  Con- 
quest, viii*'*',  in  the  evenyng,  leyng  in  an  house  of  his  awen 
atte  the  saide  toune,  so  sore  seke  in  his  bede  that  for  his  seke- 
nesse  he  myght  noght  be  remeved,  in  to  so  moche  that  in  the 
same  nyght  followyng  he  died,  callede  to  hym  the  forsaide  John 
and  Thomas,  sayng  to  thaym  in  this  maner — '  Sires  ye  be  the 
men  in  whome  I  have  grete  trust  afore  moche  other  persones, 
and  in  especial  that  suche  will  als  I  shall  declare  you  atte  this 
tyme,  for  my  full  and  last  will,  shall  throgh  your  gude  help  by 
oure  Lordes  mercy  be  perfourmed;  Wlierefore  I  late  you  have 
full  knowlich,  that  this  house  which  I  ly  in,  and  all  myn  other 
londes  and  tenements  in  this  toune,  I  yeve  and  gi-aunte  to  you, 
to  holde  to  you  your  heircs  and  your  assignes,  to  this  entent, 
that  after  myn  deces,  ze  shall  make  estate  of  the  same  house, 
londes  and  tenements  to  Alice  my  wyfe  [for]  terme  of  hir  lyve, 
so  that  after  hir  deth  thay  remajTie  to  Margarete  my  doghter, 
and  to  the  heires  of  hir  body  loufully  becomyng,  and  if  sche  die 
withoute  heir  of  hir  body  comyng,  that  then  thay  remayne  to  my 
right  heires  for  evermore.  And  to  thentent  that  this  my  last 
will  mowe  be  performed  by  you,  als  my  trust  is  that  it  shall  be, 
her  atte  this  tyme  I  delyver  you  poscssion  of  this  house  in  the 
name  of  all  my  londes  and  tenements  afore  especified  ^,  als  holy 

*  A  perfect  livery  of  seisin.     See  above,  Chap.  III.  §  11  (2). 


262  Uses  before  27  Henry  Fill.  c.  10.  [chap. 

and  entierly  als  they  wer  ever  myn  atte  any  tyme.'  By  force 
wherof  the  forseide  John  and  Thomas  wer  possessyd  of  the 
house,  landes  and  tenements  aforseide,  in  thaire  demesne  als  of 
fee,  and  of  the  same  house,  londes  and  tenements  made  estate  to 
the  saide  Alice,  after  the  deth  of  hir  saide  husbond,  accordyng 
to  the  entent  and  will  afore  declared. 

(4)  The  following  case  is  interesting,  as  showing  an  attempt 
made  to  obtain  a  recognition  of  uses  as  an  integi-al  part  of  the 
common  law  at  the  hands  of  the  Common  Law  Courts,  and 
the  reasons  why  it  was  unsuccessful. 


Yeab  Book,  4  Edwaed  IV,  8.  9.     Translation. 

In  a  writ  of  trespass  quare  vi  et  armis  clausum  f  regit  ^,  etc., 
et  arbores  succidit,  etc.,  et  herbas  conculcavit  et  consunipsit,  etc. 

Catesby  ^.  The  plaintiff  ought  not  to  have  his  action,  for  we 
say  that  long  before  the  supposed  trespass  one  J.  B.  was  seised 
in  fee  of  certain  land  and  died  so  seised,  which  then  descended 
to  the  defendant  as  heir-at-law  of  the  said  J.  B.,  being  the  place 
where  the  trespass  is  supposed  to  have  been  committed,  and  the 
defendant  being  seised  in  fee  of  the  said  lands  enfeoffed  the 
plaintiff  in  fee,  to  the  use  of  the  defendant  and  upon  confidence, 
and  then  the  defendant  by  sufferance  of  the  plaintiff  and  at  his 
will  occupied  the  land  and  cut  the  trees  within  the  said  land 
and  depastured  the  herbage,  which  are  the  trespasses  complained 
of  in  the  action. 

Jenney^.  That  is  no  plea,  for  that  is  no  certain  matter — the 
sufferance  of  the  plaintiff  and  that  the  defendant  occupied  by 
the  will  of  the  plaintiff — for  such  sufferance  and  will  cannot 
be  tried,  for  the  intent  of  a  man  is  uncertain,  and  a  man  should 
plead  such  matter  as  is  or  may  be  known  to  the  jury,  if  the 

•  This  was  the  regular  form  of  a  writ  of  trespass  (to  lands)  vi  et  armis, 
as  opposed  to  a  writ  of  trespass  *  on  the  case.'  The  latter  was  an  exten- 
sion (by  virtue  of  statute  West.  II,  c.  24)  of  the  writ  of  trespass,  which 
was  originally  applicable  only  to  violent  injuries,  to  all  cases  of  damage 
caused  by  misfeazance  (commission  of  wrongful  acts),  or  even  by  non- 
feazance  (omission  of  acts  which  a  person  is  bound  to  do). 

^  Counsel  for  defendant. 

*  Counsel  for  plaintiff. 


VI.3  Extracts  from  Year  BooJcs.  263 

issue  should  be  taken  tliereon'.  And  this  cannot  be  upon  the 
alleged  sufferance  or  will  of  the  plaintiff  that  the  defendant 
should  occupy,  etc.  ;  and  therefore  in  such  a  case  to  make  a 
good  issue  or  matter  traversable,  he  should  plead  the  lease  made 
by  the  plaintiff  to  the  defendant  to  hold  at  his  will,  which  is 
matter  traversable,  and  that  may  be  tried. 

Cateshy.  Wherefore  should  the  defendant  not  avail  himself 
of  this  matter,  when  it  follows  by  reason  that  the  defendant 
enfeoffed  the  plaintiff  to  the  use  of  the  defendant,  and  so  that 
the  plaintiff  is  only  in  the  land  to  the  use  of  the  defe^idant, 
and  the  defendant  made  the  feoffment  to  the  plaintiff  in  trust 
and  confidence?  And  the  plaintiff  suffered  the  defendant  to 
occupy  the  land,  so  that  by  reason  that  the  defendant  occupied 
the  land  at  his  will,  this  proves  that  the  defendant  shall  have 
the  advantage  of  this  feoffment  in  trust,  in  order  to  justify  his 
occupation  of  the  land  by  this  cause,  etc. 

Moih  ^.  This  is  a  good  ground  of  defence  in  Chancery,  for 
the  defendant  there  shall  aver  the  intent  and  purpose 
upon  such  a  feoffment,  for  in  the  Chancery  a  man  shall  have 
remedy  according  to  conscience  upon  the  intent  of  such 
a  feoffment,  but  here  by  the  course  of  the  common  law  in  the 
Common  Pleas  or  King's  Bench  it  is  othei'wise,  for  the  feoffee 
shall  have  the  land  ;  and  the  feoffor  shall  not  justify  contrary 
to  his  own  feoffment,  that  the  said  feoffment  was  made  in 
confidence  or  the  contrary. 

Cateshy.  The  law  of  Chaiiceiy  is  the  common  law  of  the 
land,  and  there  the  defendant  shall  have  advantage  of  this 
matter  and  feoffment ;  wherefore  then  shall  he  not  have  it  in 
the  same  manner  here  1 

Moile.  That  cannot  be  so  here  in  this  court,  as  I  have 
already  said,  for  the  common  law  of  the  land  is  different  from 
the  law  of  Chancery  on  this  point. 

Cateshy  passed  over  the  point ;  and  as  to  the  trees  he  re- 
peated the  former  plea,  and  said  that  he  had  no  further  answer. 
As  to  the  herbage,  he  said  that  the  plaintiff  was  seised  in  fee 
and  leased  the  land  to  the  defendant  to  hold  at  his  will,  etc. ; 
wherefore  the  defendant  entered  and  committed  the  alleged 
trespasses  for  which  the  action  was  brought. 

Jenney  traversed  the  lease,  etc. 

*  The  Chancellor  as  an  ecclesiastic  could  look  into  a  man's  heart  and 
conscience  and  see  what  his  intent  was ;  a  jury  could  only  pronounce  upon 
matter  '  in  pais,'  open  notorious  facts  known  to  all  the  neighbours,  fcsee 
above,  p.  248.  ^  A  judge. 


264  Uses  before  27  Henry  VIII.  c.  10.  [chap. 

(5)  The  following  cases  show  that  though  lands  might  be  held 
to  the  use  of  a  married  woman,  the  Chancellor  would  not  allow 
her  to  join  with  her  husband  in  disposing  of  her  interest  during 
the  coverture  or  marriage,  but  would  treat  any  disposition  made 
by  the  feoffee  to  uses  at  the  joint  request  of  the  husband  and 
wife  as  a  breach  of  trust,  for  which  the  feoffee  must  answer. 
The  principle  upon  which  this  rule  was  established  is  clearly 
stated  in  the  cases  below.  On  similar  gi'ounds  it  has  become 
the  established  practice  to  protect  the  wife  against  imprudent 
dispositions  of  her  property  under  tbe  influence  of  the  husband 
by  inserting  in  the  deed  of  settlement  a  provision  that  she  is 
not  during  the  coverture  to  make  any  alienation  of  her  pro- 
perty by  way  of  anticipation.  Subject  however  to  this  restriction, 
a  married  woman  has  the  same  absolute  power  of  disposition 
over  property  held  by  trustees  for  her  separate  use  as  if  she 
were  unmarried. 

Year  Book,  7  Edward  IV,  14.  8.     Translation. 

There  was  the  following  case  in  Chancery.  A  man  was 
enfeoffed  to  the  use  of  a  woman,  who  took  husband  (baron). 
Husband  and  wife  then  sold  the  land  to  a  stranger,  for  a 
certain  sum  of  money,  the  wife  received  the  money;  and  hus- 
band and  wife  then  prayed  the  feoffee  to  the  use  of  the  wife 
to  make  an  estate  of  this  land  to  the  stranger,  and  he  enfeoffed 
the  stranger.  Afterwards  the  husband  died,  and  the  Avife  brings 
a  subpoena  against  him  who  had  been  enfeoffed  to  her  use,  and 
ne  pleaded  ail  the  circumstances,  and  to  this  plea  the  plaintiff" 
demurred  \  And  the  case  was  rehearsed  in  the  Exchequer 
Chamber  before  the  Chancellor  and  the  Justices  of  both  Benches. 

StarJcey  (for  the  plaintiff).  The  plea  is  not  sufficient,  _  for 
what  was  done  by  the  wife  was  void,  for  if  she  had  been  seised 
of  the  land,  and  the  husband  and  the  wife  had  made  a  feoffment 
thereof,  after  the  husband's  death  she  would  have  had  a  '  cui 
in  vita  S'  for  that  the  feoffment  made  by  the  wife  during  the 

>  That  is,  she  admitted  the  plea  to  be  true  in  fact,  but  alleged  that  the 
facts  therein  stated,  though  true,  did  not  in  point  of  law  amount  to  a  valid 
answer  to  her  claim. 

2  This  was  the  remedy  by  which  the  wife  might  recover  after  the  hus- 
band's death  her  lands  in  the  hands  of  a  feoffee  to  whom  the  husband  had 
granted  them  with  the  assent  of  the  wife,  although  she  had  herself  been  a 
party  to  the  feof&ient.     See  the  form  of  the  writ  in  the  next  case. 


VI.]  Extracts  from  Year  Books.  26$ 

coverture  is  void,  and  so  here  in  conscience  this  sale  made  hy 
husband  and  wife  was  entirely  the  act  of  the  husband,  and  not 
of  the  wife,  etc.  Ad  quod  tola  curia  concessit,  etc.  And  the 
Chancellor  said  that  the  wife  non  potest  consentii-e  durinj^  the 
coverture,  if  it  be  through  dread  or  coercion  (that  she  did  it), 
that  cannot  be  said  to  be  consent,  and  everything  that  a  feme 
covert  does  shall  be  said  to  be  done  tln*ough  dread  of  her  hus- 
band, and  that  thej^  wovild  pay  no  regard  to  the  fact  of  her 
having  received  the  money,  because  she  could  have  had  no  ad- 
vantage of  it,  but  only  the  husband,  etc.  The  Chancellor  said 
to  Stai'key,  '  What  do  you  pray  \ ' 

\StarJiejj.'\  We  pray  that  the  defendant  should  be  committed 
to  prison  until  he  have  satisfied  us  concerning  the  land,  etc. 

The  Chancellor.  You  can  have  a  subpoena  against  the  vendee 
who  is  in  possession  of  the  land,  and  recover  the  land  against  him  ^ 

YelvertoH.  If  he  knew  of  the  deceit  and  wrong  done  to  the 
woman,  then  the  subpoena  lies  against  him,  otherwise  not. 

The  Chancellor.     He  knew  that  the  woman  was  a  feme  covert. 

Starkey.  We  pray  that  the  defendant  be  committed  to  prison, 
and  as  to  the  subpoena  against  the  other  we  wish  to  be  ad- 
vised. 

Year  Book,  18  Edward  IV,  ri.  4.     Translation. 

There  was  the  following  case  in  the  Chancery.  A  feme  sole 
made  a  feoffment  in  confidence  (to  her  own  use),  and  then  took 
husband,  and  during  the  coverture  (she  dying  in  her  husband's 
lifetime)  she  declared  her  will  that  her  feoffees  should  make  an 
estate  to  her  husband,  him  and  his  heirs  for  ever,  and  after  her 
death  her  husband  sued  a  subpoena.  The  case  was  whether 
this  will  was  good  or  not. 

Tremaile.  It  seems  that  the  will  is  good,  and  that  the  feoffees 
will  be  compelled  to  make  an  estate  according  to  the  will.  For 
just  as  the  wife  can  make  executors  with  the  agreement  of  her 
husband  ^,  so  can  she  declare  her  will  by  the  agreement  of  her 

*  It  was  the  interference  of  the  Chancellor  with  the  '  franc  tenement ' 
which  made  the  Commons  so  jealous  of  his  jurisdiction  in  the  earlier  stages 
of  its  growth.     See  Spence,  Equitable  Jurisdiction,  i.  p.  344. 

'^  As  a  general  rule,  a  married  woman  can  make  no  valid  will.  Her 
husband  may  however  assent  to  her  disposing  of  her  personal  property  by 
will.  This  has  the  effect  of  waiving  his  right  to  take  out  administration  to 
her  property,  .and  effect  will  then  be  given  to  the  dispositions  of  her  will. 
This  however  can  only  extend  to  those  rights  of  the  wife  which  have  not 


266  Uses  before  27  Kenry  VIII.  c.  10. 

husband  that  the  feoffees  should  make  an  estate  to  the  husband, 
and  conscience  will  see  that  it  should  be  done. 

Vavisor.  There  is  a  great  difference  between  your  case  and 
this  case,  for  there  are  divers  cases  in  which  by  agreement  with 
her  husband  the  wife  may  make  executors,  as  if  a  bond  be  made 
to  a  feme  sole,  during  the  coverture  by  agreement  with  her  hus- 
band she  can  make  executors,  and  in  that  case  the  executors 
shall  have  an  action  of  debt  on  the  bond,  because  the  husband 
cannot  in  any  wise  have  an  action  upon  it  after  the  death  of 
the  wife,  for  his  interest  is  determined  by  her  death  ;  so  as  to 
her  apparel,  which  is  called  in  our  law  jjuraphernalia,  of  this 
by  agreement  with  her  husband  she  can  make  a  will,  and  that 
would  be  good,  and  they  are  the  goods  of  the  husband,  but  in 
the  present  case  the  law  is  otherwise,  for  the  law  will  not  suffer 
anything  done  by  her  during  the  coverture  to  be  good,  and  if 
during  the  coverture  she  makes  a  feoffment  of  her  land,  it  is 
void,  and  this  proves  well  that  nothing  done  by  her  during  the 
coverture  is  good  concerning  any  inheritance,  for  the  writ  '  cui 
in  vita '  runs,  '  cui  ipsa  in  vita  sua  contradicere  non  potuit/ 
and  so  this  proves  well  that  her  act  and  her  will  is  void  during 
the  coverture,  etc. 

Jaye  ad  idem.  If  this  will  be  good,  the  inheritance  of  the 
wife  during  the  coverture  will  not  be  safe  from  alienation  by 
the  husband,  for  the  feoffment  made  before  the  coverture  is  to 
that  intent  that  the  alienation  of  the  husband  should  be  in- 
effectual, and  thus  if  the  will  should  be  effectual,  that  would  be 
prejudicial  to  the  heir  (of  the  woman),  quod  Suliard  concessit. 

The  Chancellor.  The  will  cannot  be  good,  for  she  cannot 
acquire  or  lose  land  during  the  coverture  without  her  husband, 
and  seeing  that  she  cannot  do  that  at  the  common  law,  and  that 
any  act  done  by  her  is  merely  void,  the  law  of  conscience  says 
also  that  her  will  should  be  so  (void)  and  ineffectual. 

Tremaile.     A  fine  levied  by  husband  and  wife  is  good. 

Vavisor.  The  reason  is  that  she  shall  be  examined  in  open 
court  by  the  justices,  and  her  intent  is  proved  by  matter  of 
record. 

But  the  opinion  of  all  those  at  that  time,  except  Tremaile, 
was  that  the  will  was  void. 

become  vested  in  the  husband  in  his  marital  right :  these  are  confined  to 
'  choses  in  action  not  reduced  into  possession,'  e.g.  a  debt  due  but  not  paid, 
and  paraphernalia.  As  to  the  power  of  a  married  woman  under  the  modem 
law  to  dispose  by  will  of  interests  in  lands  held  in  trust  for  her,  see  below, 
Chap.  VIII. 


CHAPTEK   VII. 

THE    STATUTE    OF   USES    AND   ITS   PRINCIPAL 
EFFECTS  ON  MODERN  CONVEYANCING. 

In  the  last  chapter  the  early  history  of  uses  of  lands  has  been 
traced  in  outline.  It  has  been  seen  that,  originating  simply  in 
a  moral  or  religious  obligation,  a  use  of  lands  became  a  recog- 
nised collection  of  rights  and  duties,  incumbent  upon  and  enjoyed 
by  the  legal  owner  and  the  beneficiaiy  respectively,  and  capable 
of  being  asserted  and  enforced  by  the  proper  tribunal.  In  re- 
viewing the  subsequent  history  of  uses  it  must  be  borne  in  mind 
that  the  tendency  of  philosophical  thought  prevailing  at  the 
period  in  question  was  to  invest  all  abstract  ideas  with  a  real 
and  substantial  existence,  to  treat  of  them  not  merely  as  collec- 
tive names  for  a  variety  of  particular  facts  and  circumstances 
agi-eeing  in  the  points  designated  by  the  general  name,  but  as 
having  a  real  existence,  apart  from  the  particular  or  individual 
instances,  and  possessing  definite  attributes  or  properties  neces- 
sarily inherent  in  their  essence.  These  realist  notions  will  be 
found  to  have  exercised  an  important  and  pernicious  influence 
upon  the  development  of  the  law  of  land,  which  is  most  con- 
spicuous in  the  history  of  uses.  A  use  is  now  regai'ded  as  an 
abstract  entity,  possessing  certain  qualities  of  its  own,  which 
naturally  flow  from  it  or  arc  inherent  in  it.  Thus  the  develop- 
ment of  the  law  is  frequently  the  result  of  a  discussion  as  to 
what  these  essential  qualities  of  a  use  are,  and  when  they  are 
supposed  to  be  ascertained  by  reasoning,  they  are  made  the 
basis  of  judicial  decision,  all  other  considerations,  such  as  ex- 
pediency, or  conformity  to  general  principles  of  law,  being  thrown 


268  Uses.  [chap.  vii. 

into  the  background.  It  must  be  confessed  that  the  handling  of 
'  uses '  by  the  common  lawyers  contrasts  unfavourably  with  the 
enlightened  system  which  had  been  constructed  by  the  succession 
of  ecclesiastical  chancellors. 

§  I.    The  Statute  of  Uses,  27  Henry  VIII,  c.  10. 

Before  the  passing  of  the  Statute  of  Uses  in  the  twenty- 
seventh  year  of  Henry  VIII,  attempts  had  been  made  to  protect 
by  legislation  the  interests  of  creditors,  of  the  king,  and  of  the 
lords,  which  were  affected  injui'iously  by  feoffments  to  uses. 
It  has  already  been  seen  that  the  legislature  at  a  very  early 
date  interfered  in  the  interest  of  creditors  to  render  uses  liable 
to  be  taken  in  execution  for  debt\  By  i  Richard  III,  c.  i, 
the  conveyances  of  cestui  que  rose  were  made  good  without 
assent  of  the  feoffees^;    and  by  4  Henry  VII,  c.  17,  the  lord 

*  See  above,  p.  242. 

*  This  statute,  after  reciting  '  that  by  privy  and  unknown  feoflfiments 
great  unsurety,  trouble,  costs  and  grievous  vexations  do  daily  grow  betwixt 
the  king's  subjects,  insomuch  that  no  man  that  buyeth  lands,  tenements, 
rents,  services,  or  other  hereditaments,  nor  women  which  have  jointure  or 
dower  in  any  lands,  tenements,  or  other  hereditaments,  nor  the  last  will  of 
men  to  be  performed,  nor  leases  for  term  of  life  or  of  years,  nor  annuities 
granted  to  any  person  or  persons  for  their  services  for  term  of  their  lives  or 
otherwise,  be  in  perfect  surety,  nor  without  great  trouble  and  doubt  of  the 
same  by  reason  of  such  privy  and  unknown  feoffments,'  enacts  '  that  every 
estate,  feoffment,  gift,  release,  grant,  leases,  and  confirmations,  of  lands,  tene- 
ments, rents,  services,  or  other  hereditaments,  made  or  had,  or  hereafter  to  be 
made  or  had,  by  any  person  or  persons  being  of  full  age,  of  whole  memory, 
at  large  and  not  in  duress,  to  any  person  or  persons,  and  all  recoveries 
and  executions  had  or  made,  shall  be  good  and  effectual  to  him  to  whom  it  is 
so  made,  had  or  given,  and  to  all  other  to  his  use,  against  the  seller,  feoffor, 
donor,  or  grantor  of  the  same,  and  against  the  sellers,  feoffors,  donors,  or 
grantors,  and  his  and  their  heirs  claiming  the  same  only  as  heir  or  heirs  to 
the  same  sellers,  feoffors,  donors,  or  grantors,  and  every  of  them,  and 
against  all  other  having  or  claiming  any  title  or  interest  in  the  same  only 
to  the  use  of  the  same  seller,  feoffor,  donor,  or  grantor,  or  sellers,  donors, 
or  grantors,  or  his  or  their  said  heirs,  at  the  time  of  the  bargain,  sale,  cove- 
nant, gift,  or  grant  made,  saving  to  every  person  or  persons  such  right, 
title,  action,  or  interest  by  reason  of  any  gift  in  tail  thereof  made,  as  they 
ought  to  have  if  this  Act  had  not  been  made.' 


§  I.]  The  Statute  of  Uses.  269 

was  given  the  wardship  of  the  heir.  The  tendency  of  these 
and  similar  enactments  was  to  assimilate  in  some  particulars 
the  position  of  cestui  que  use  to  that  of  legal  owner,  to  throw 
upon  him  some  at  all  events  of  the  burdens  and  liabilities 
attaching  to  the  legal  ownership.  What  imperfect  success 
attended  these  attempts  appears  from  the  preamble  of  the 
Statute  of  Uses.  The  object  of  that  Statute  was  by  joining  the 
possession  or  seisin  to  the  use  and  interest  (or,  in  other  words, 
by  providing  that  all  the  estate  which  would  by  the  common 
law  have  passed  to  the  grantee  to  uses  should  instantly  be  taken 
out  of  him  and  vested  in  cestui  qv£  use),  to  annihilate  altogether 
the  distinction  between  the  legal  and  beneficial  ownership,  to 
make  the  ostensible  tenant  in  every  case  also  the  legal  tenant, 
liable  to  his  lord,  for  feudal  dues  and  services, — wardship,  mar- 
riage, and  the  rest.  As  will  be  pointed  out  in  the  next  chapter, 
by  converting  the  use  into  the  legal  interest  the  Statute  did 
away  with  the  power  of  disposing  of  interests  in  lands  by  will, 
which  had  been  one  of  the  most  important  results  of  the  intro- 
duction of  uses.  Probably  these  were  the  chief  results  aimed 
at  by  the  Statute  of  Uses.  A  sti-ange  combination  of  circum- 
stances— the  force  of  usage  by  which  practices  had  arisen  too 
strong  even  for  legislation  to  do  away  with,  coupled  with  an 
almost  superstitious  adherence  on  the  part  of  the  courts  to  the 
letter  of  the  Statute — produced  the  curious  result,  that  the  effect 
of  the  Statute  of  Uses  was  directly  the  reverse  of  its  purpose, 
that  by  means  of  it  secret  conveyances  of  the  legal  estate  were 
introduced,  while  by  a  strained  interpretation  of  its  terms  the 
old.  distinction  between  beneficial  or  equitable  and.  legal  owner- 
ship was  revived.  What  may  be  called  the  modern  law  of  Eeal 
Property  and  the  highly  technical  and  intricate  system  of  con- 
veyancing which  still  prevails,  dates  from  the  legislation  of 
Henry  VIII. 


370  Uses.  [chap.  VII. 


27  Henry  VIII,  cap.  10.    An  Act  concerning  Uses 

AND  Wills. 

Where  by  the  common  laws  of  this  realm,  lands,  tenements, 
and  hereditaments  be  not  devisable  by  testament,  nor  ought  to 
be  transferred  from  one  to  another,  but  by  solemn  livery  and 
seisin,  matter  of  record  ^,  writing  sufficient  made  bona  fide,  with- 
out covin  or  fraud;  yet  nevertheless  divers  and  sundry  imagina- 
tions, subtle  inventions,  and  practices  have  been  used,  whereby 
the  hereditaments  of  this  realm  have  been  conveyed  from  one  to 
another  by  fraudulent  feoffinents,  fines,  recoveries,  and  other 
assurances  craftily  made  to  secret  uses,  intents,  and  trusts  ;  and 
also  by  wills  and  testaments,  sometimes  made  by  nude  parolx 
and  words,  sometimes  by  signs  and  tokens,  and  sometimes  by 
writing,  and  for  the  most  part  made  by  such  persons  as  be 
visited  with  sickness,  in  their  extreme  agonies  and  pains,  or  at 
such  time  as  they  have  had  scantly  any  good  memory  or  re- 
membrance ;  at  which  times  they  being  provoked  by  greedy  and 
covetous  persons  lying  in  Avait  about  them,  do  many  times 
dispose  indiscreetly  and  unadvisedly  their  lands  and  inheritances  ; 
by  reason  whereof,  and  by  occasion  of  which  fraudulent  feoff- 
ments, fines,  recoveries,  and  other  like  assurances  to  uses,  con- 
fidences, and  trusts,  divers  and  many  heirs  have  been  unjustly, 
at  sundry  times  disherited,  the  lords  have  lost  their  wards, 
marriages,  reliefs,  harriots,  escheats,  aids  pur  fair  fitz  chivalier 
and  pur  file  marier,  and  scantly  any  person  can  be  certainly 
assured  of  any  lands  by  them  purchased,  nor  know  surely  against 
whom  they  sliall  use  their  actions  or  execution  for  their  rights, 
titles,  and  duties  ;  also  men  married  have  lost  their  tenancies  by 
the  curtesy,  women  their  dowers,  manifest  perjuries  by  trial  of 
such  secret  wills  and  uses  have  been  committed ;  the  king's 
highness  hath  lost  the  profits  and  advantages  of  the  lands  of 
persons  attainted,  and  of  the  lands  craftily  put  in  feoffment  to 
the  uses  of  aliens  born,  and  also  the  profits  of  waste  for  a  year 
and  a  day  of  lands  of  felons  attainted,  and  the  lords  their  es- 
cheats thereof ;  and  many  other  inconveniences  have  happened, 
and  daily  do  increase  among  the  king's  subjects,  to  their  great 
trouble  and  inquietness,  and  to  the  utter  subversion  of  the 
ancient  common   laws  of  this   realm;    for  the   extirping   and 

*  That  is,  by  process  in  a  court  of  record,  e.  g.  by  fine  or  recovery. 


§  r.]  27  Henry  VIII.  c.  10.  271 

extinguishment  of  all  such  subtle  practised  feoffments,  fines, 
recoveries,  abuses,  and  errors  heretofore  used  and  accustomed 
in  this  realm,  to  the  subversion  of  the  good  and  ancient  laws  of 
the  same,  and  to  the  intent  that  the  king's  highness  or  any 
other  his  subjects  of  this  reahn,  shall  not  in  any  wise  hereafter, 
by  any  means  or  inventions  be  deceived,  damaged,  or  hurt,  by 
reason  of  such  trusts,  uses,  or  confidences  :  It  may  please  the 
King's  most  royal  Majesty,  that  it  may  be  enacted  by  his  High- 
ness, by  the  assent  of  the  lords  spiritual  and  temporal,  and  the 
commons,  in  this  present  parliament  assembled,  and  by  the 
authority  of  the  same,  in  manner  and  form  following :  that  is 
to  say,  that  where  any  person  or  persons  stand,  or  be  seised  \ 
or  at  any  time  hereafter  shall  happen  to  be  seised  of  and  in  any 
honours,  castles,  manors,  lands,  tenements,  rents,  services,  rever- 
sions, remainders,  or  other  hereditaments,  to  the  use,  confidence, 
or  trust "  of  any  other  person  or  persons  ^,  or  of  any  body 
politick  *,  by  reason  of  any  bargain,  sale,  feofi'ment,  fine,  recovery, 

*  In  order  to  bring  this  statute  into  operation,  one  person  must  be  seised 
to  the  use  o{  another.  Hence  the  first  grantee  must  have  an  estate  of  free- 
hold, e.g.  the  land  must  be  conveyed  by  feoffment  or  otherwise  to  A  in  fee, 
or  in  tail,  or  for  life,  to  the  use  of  B.  This  e-:cecutes  the  use  in  B,  and  B  takes 
the  estate  limited  to  him  by  virtue  of  the  statute,  everything  which  would 
have  been  given  to  A  by  operation  of  the  common  law  being  instantly 
taken  out  of  him  and  vested  in  B.  On  the  other  hand,  if  lands  are  given 
to  A  for  ten  years,  or  for  any  estate  less  than  freehold,  to  the  use  of  B,  A  is 
not  seised  to  the  use  of  B,  i.e.  he  has  not  the  possession  as  of  freehold,  con- 
sequently the  statute  does  not  operate,  and  A  retains  the  legal  interest  in 
the  term.  For  the  same  reason  the  words  of  the  statute  have  no  reference 
to  copyhold  estates. 

^  Though  the  word  that  is  most  frequently  employed  to  designate  the 
beneficial  interest  is  '  use  ' — e.  g.  feoffment  to  A  and  his  heirs  to  the  use  of 
B  and  his  heirs — any  words  expressing  the  same  intention  are  sufficient  to 
raise  a  '  use.'  In  practice  however,  since  the  revival  of  the  jurisdiction  of 
the  Court  of  Chancery  as  explained  below,  the  word  use  is  commonly  applied 
to  a  different  species  of  interest  to  that  designated  by  trust. 

*  One  person  must  be  seised  to  the  use  of  another,  so  if  lands  are  con- 
veyed to  A  and  B  and  their  heirs  to  the  use  of  A  and  B  and  their  heirs, 
there  is  here  no  person  seised  to  the  use  of  another,  and  consequently  the 
conveyance  does  not  operate  under  the  statute,  but  has  its  effect  at  common 
law.  It  is  otherwise  if  there  is  any  substantial  difference  between  the 
persons  to  whom  the  common  law  of  seisin  is  given  and  the  cestuis  que  usent, 
e.g.  if  lands  are  given  to  A  and  B  and  their  heirs  to  the  use  of  A,  B,  anc' 
C  and  their  heirs.     Here  the  statute  operates. 

*  Or  corporations,  see  above,  p.  150. 


273  Uses.  [chap.  vii. 

covenant,  contract,  agreement,  will,  or  otherwise,  by  any  manner 
means  whatsoever  it  be ;  that  in  every  such  case,  all  and  every 
such  person  and  persons,  and  Ijodies  politick,  that  have  or  here- 
after shall  have  any  such  use,  confidence,  or  trust,  in  fee  simple, 
fee  tail,  for  term  of  life,  or  for  years,  or  otherwise;  or  any  use,  con- 
fidence, or  tnist,  in  remainder^  or  reverter,  shall  from  henceforth 
stand  and  be  seised,  deemed,  and  adjudged  in  lawful  seisin, 
estate,  and  possession  of  and  in  the  same  honours,  castles, 
manors,  lands,  tenements,  rents,  services,  reversions,  remainders, 
and  hei-editameuts,  with  their  appvirtenances,  to  all  intents,  con- 
structions, and  purposes  in  the  law,  of  and  in  such  like  estates, 
as  they  had,  or  shall  have  in  use,  trust,  or  confidence  of  or  in  the 
same ;  and  that  the  estate,  title,  right,  and  possession  that  was 
in  such  person  or  persons  that  were,  or  shall  be  hereafter  seised 
of  any  lands,  tenements,  or  hereditaments,  to  the  use,  confidence, 
or  trust  of  any  such  person  or  persons,  or  of  any  body  politick, 
be  from  henceforth  clearly  deemed  and  adjudged  to  be  in  him  or 
them  that  have,  or  hereafter  shall  have  such  use,  confidence,  or 
trust,  after  such  quality,  manner,  form,  and  condition  as  they  had 
before,  in  or  to  the  use,  confidence,  or  trust  that  was  in  them^ 

2.  And  be  it  further  enacted  by  the  authority  aforesaid. 
That  where  divers  and  many  persons  be  or  hereafter  shall  happen 
to  be  jointly  seised  of  and  in  any  lands,  tenements,  rents,  rever- 
sions, remainders,  or  other  hereditaments,  to  the  use,  confidence, 
or  trust  of  any  of  them  that  be  so  jointly  seised^,  that  in  every 

*  Therefore  remainders  can  be  created  by  way  of  use  as  well  as  at 
common  law  ;  e.  g.  feoffment  to  A  and  his  lieirs  to  the  use  of  B  for  life, 
remainder  to  the  use  of  C  in  tail,  remainder  to  the  use  of  1)  in  fee.  See 
Table  III  in  Appendix  to  Part  I. 

*  The  statute  contains  a  double  provision,  (i)  that  the  interest  of  cestui 
que  use  shall  be  turned  into  an  actual  possession  or  legal  seisin  (thus,  if 
lands  are  given  to  A  and  his  heirs  to  the  use  of  B  for  life,  or  to  the  use  of 
C  for  ten  years,  by  virtue  of  this  provision  B  is  seised  of  a  freehold  estate 
for  life  and  C  is  possessed  of  a  term  of  ten  years)  ;  (2)  that  the  common 
law  seisin  shall  be  taken  out  of  the  grantees  or  feoffees  and  vested  in  cestui 
que  use.  Hence  it  follows  that  the  estate  limited  to  cestui  que  use  must 
not  be  larger  than  that  given  to  the  grantee  or  feoffee  to  uses.  E.  g.  a 
grant  to  A  to  the  use  of  B  and  his  heirs  would  only  give  B  a  life  estate. 
Therefore '  a  seisin  should  always  be  created  coextensive  with  the  uses  which 
are  intended  to  be  raised.'  (Sugden's  Gilbert  on  Uses,  p.  127.)  In  practice, 
an  estate  in  fee  simple  is  always  limited  to  the  common  law  grantees. 

^  e.  g.  when  there  has  been  a  feoffinent  to  A,  B,  and  C  and  theii-  heirs  to 
the  use  of  A  and  bis  heirs. 


§  I.]  27  Henry  Fill.  c.  10.  273 

such  case  that  or  those  person  or  persons  which  have  or  hereafter 
shall  have  any  such  use,  confidence,  or  trust,  in  any  such  lands, 
tenements,  rents,  reversions,  remainders,  or  hereditaments,  shall 
from  henceforth  have  and  be  deemed  and  adjudged  to  have,  only 
to  him  or  them  that  have,  or  hereafter  shall  have,  such  use, 
confidence,  or  trust,  such  estate,  possession,  and  seisin  of  and  in 
the  same  lands,  tenements,  rents,  reversions,  remainders,  and 
other  hereditaments,  in  like  nature,  manner,  form,  condition, 
and  course,  as  he  or  they  had  before  in  the  use,  confidence,  or 

trust  of  the  same  lands,  tenements,  or  hereditaments 

3.  And  where  also  divers  persons  stand  and  be  seised  of  and 
in  any  lands,  tenements,  or  hereditaments  in  fee-simple  or 
otherwise,  to  the  use  or  intent  that  some  other  person  or 
persons  shall  have  and  perceive  yearly  to  them  and  to  his  or 
their  heirs  one  annual  rent  of  xcli.  or  more  or  less  out  of  the 
same  lands  and  tenements,  and  some  other  person  one  other 
annual  rent  to  him  and  his  assigns  for  term  of  life,  or  years,  or 
for  some  other  special  time,  according  to  such  intent  and  use  as 
hath  been  heretofore  declared,  limited,  and  made  thereof  ^ :  Be  it 
therefore  enacted  by  the  authority  aforesaid,  that  in  every  such 
case  the  same  persons,  their  heirs  and  assigns,  that  have  such  use 
and  interest  to  have  and  perceive  any  such  annual  rents  out 
of  any  lands,  tenements,  or  hereditaments,  that  they  and  every 
of  them,  their  heirs  and  assigns  be  adjudged  and  deemed  to 
be  in  possession  and  seisin  of  the  same  rent  of  and  in  such 
like  estate  as  they  had  in  the  title,  interest,  or  use,  of  the  said 
rent  or  profit,  and  as  if  a  sufficient  grant  or  other  lawful  con- 
veyance had  been  made  and  executed  to  them  by  such  as  were 
or  shall  be  seised  to  the  use  or  intent  of  any  such  rent  to  be  had, 
made,  or  paid  according  to  the  very  trust  and  intent  thereof'^, 

'  That  is,  where  lands  are  vested  by  feoffment  or  otherwise  in  A  and  his 
heirs  to  the  use  and  intent  that  B  and  his  heirs  for  ever  shall  receive  a  rent 
(see  above,  p.  165)  issuing  out  of  those  lands. 

*  The  effect  of  this  provision  isto  vest  the  rent  mcestuique  use  (5,  last  note), 
and  consequently  all  the  legal  remedies  for  the  rent  are  also  vested  in  him, 
to  the  same  extent  as  if  he  had  received  a  direct  grant  of  the  rent  operative 
at  common  law.  The  limitation  of  a  rent  in  the  first  instance  to  A  and  his 
heirs  to  the  use  of  B  and  his  heirs  is  not  touched  by  this  section,  which 
deals  only  with  the  case  of  a  person  being  seised  of  lands  to  the  use  that 
another  may  receive  a  rent.  Rent,  however,  is  a  '  tenement '  within  the 
first  section,  and  therefore  by  a  grant  of  a  rent  by  deed  to  A  and  his  heirs 
to  the  use  of  B  and  his  heirs  a  use  of  the  rent  is  executed  in  B,  and  all  the 
legal  remedies  which  he  would  have  had  by  a  direct  grant  at  common  law 

T 


274  Uses.  [chap.  vii. 

and  that  all  and  every  such  person  and  persons  as  have  or  here- 
after shall  have  any  title,  use,  and  interest,  in  or  to  any  such 
rent  or  profit  shall  lawfully  distrain  for  non-payment  of  the  said 
rent,  and  in  their  own  names  make  avowries,  or  by  their  bailiffs 
or  servants  make  cognisances  and  justifications^,  and  have  all  other 
suits,  entries,  and  remedies,  for  such  rents  as  if  the  same  rents 
had  been  actually  and  really  granted  to  them  with  sufficient 
clauses  of  distress,  re-entry,  or  otherwise,  according  to  such  con- 
ditions, pains,  or  other  things  limited  and  appointed  upon  the 
trust  and  intent  for  payment  or  surety  of  such  rent. 

4.  And  be  it  further  enacted  by  the  authority  aforesaid,  that 
Avhereas  divers  persons  have  purchased,  or  have  estate  made  and 
conveyed  of  and  in  divers  lands,  tenements,  and  hereditaments, 
unto  them  and  to  their  wives  and  to  the  heirs  of  the  husband, 
or  to  the  husband  and  to  the  wife,  and  to  the  heirs  of  their  two 
bodies  begotten,  or  to  the  heirs  of  one  of  their  bodies  begotten, 
or  to  the  husband  and  to  the  wife,  for  term  of  their  lives,  or  for 
term  of  life  of  the  said  wife,  or  where  any  such  estate  or  pur- 
chase of  any  lands,  tenements,  or  hereditaments,  hath  been  or 
hereafter  shall  be  made  to  any  husband  and  to  his  wife,  in 
manner  and  form  expressed,  or  to  any  other  person  or  persons, 
and  to  their  heirs  and  assigns,  to  the  use  and  behoof  of  the  said 
husband  and  wife,  or  to  the  use  of  the  wife,  as  is  before  rehearsed, 
for  the  jointer  of  the  wife,  that  then  and  in  every  such  case  every 
woman  married  having  such  jointer  made  or  hereafter  to  be  made 
shall  not  claim  nor  have  title  to  have  any  dower  of  the  residue  of 
the  lands,  tenements,  or  hereditaments,  that  at  any  time  were 
her  said  husband's,  by  whom  she  hath  any  such  jointer,  nor  shall 
demand  nor  claim  her  dower  of  and  against  them  that  have  the 
lands  and  inheritances  of  her  said  husband,  but  if  she  have  no 
such  jointer,  then  she  shall  be  admitted  and  enabled  to  pursue, 
have,  and  demand  her  dower  by  writ  of  dower  after  the  due 
course  and  order  of  the  common  laws  of  this  realm,  this  act  or 
any  law  or  provision  made  to  the  contrary  thereof  notwith- 
standing ^. 

are  vested  in  him.  A  rent,  as  has  already  been  said,  is  regarded  as  a  free- 
hold interest,  and  the  proper  remedy  for  its  recovery,  before  the  abolition 
of  real  actions,  was  by  assize  of  novel  disseisin. 

^  When  a  person  whose  goods  have  been  distrained  seeks  to  replevy 
them  (i.  e  recover  by  an  action  of  replevin),  and  the  defendant  justifies 
this  taking  of  the  goods,  he  is  said  to  make  avowry  if  he  justifies  in  his  own 
right  (e.  g.  under  a  distress  for  rent  in  arrear  due  to  him),  and  to  make 
co(/nizance  if  he  justifies  in  the  right  of  another. 

^  The  effect  of  the  grant  of  lands  to  the  use  of  a  man  and  his  wife  has 


§  I.]  27  Kenry  VIII.  c.  lo.  275 

5.  Provided  always  that  if  any  such  woman  be  lawfully  expulsed 
or  evicted  from  her  said  joiuter,  or  from  any  part  thereof,  without 
any  fraud  or  covin,  by  lawful  entry,  action,  or  by  discontinuance 
of  her  husband,  then  every  such  woman  shall  be  endowed  of  as 
much  of  the  residue  of  her  husband's  tenements  or  hereditaments, 
whereof  she  was  before  dowable,  as  the  same  lands  and  tene- 
ments so  evicted  and  expulsed  shall  amount  or  extend  unto. 

7.  Provided  also,  that  if  any  wife  have  or  hereafter  shall  have 
any  manors,  lands,  tenements,  or  hereditaments  unto  her  given  and 
assured  after  marriage  for  term  of  her  life  or  otherwise  in  jointer, 
except  the  same  assui-ance  be  to  her  made  by  act  of  parliament, 
and  the  said  Vife  after  that  fortune  to  overlive  her  said  husband, 
in  whose  time  the  said  jointer  was  made  or  assured  unto  her, 
that  then  the  same  wife  so  overliving  shall  and  may  at  her  liberty 
after  the  death  of  her  said  husband,  refuse  to  have  and  take  the 
lands  and  tenements  so  to  her  given,  appointed,  or  assured 
during  the  coverture,  for  term  of  her  life,  or  othei'wise  in  joiuter, 
except  the  same  assurance  be  to  her  made  by  act  of  par- 
liament, as  is  aforesaid,  and  thereupon  to  have,  ask,  demand, 
and  take  her  dower  by  writ  of  dower,  or  otherwise,  according  to 
the  common  law,  of  and  in  all  such  lands,  tenements,  and 
hereditaments,  as  her  husband  was  and  stood  seised  of  any  state 
of  inheritance  at  any  time  during  the  coverture  ;  anything  con- 
tained in  this  act  to  the  contrary  in  anywise  notwithstanding. 

9.  And  forasmuch  as  great  ambiguities  and  doubts  may 
arise  of  the  validity  and  invalidity  of  wills  heretofore  made  of 
any  lands,  tenements,  or  hereditaments  to  the  great  trouble  of 
the  King's  subjects,  the  King's  most  royal  Majesty  minding  the 

been  already  noticed.  See  above,  p.  255.  It  will  be  seen  from  this  passage 
that  the  original  meaning  of  'jointure'  is  a  joint  estate  given  by  way  of 
use  to  husband  and  wife  jointly.  In  common  acceptation,  however,  it 
extends  to  a  sole  estate,  and  is  defined  by  Sir  Edward  Coke  to  be  '  a  com- 
petent livelihood  of  freehold  for  the  wife  of  lands  and  tenements  to  take 
effect  in  profit  or  possession  presently  after  the  death  of  the  husband  for 
the  life  of  the  wife  at  least.'  (Coke  upon  Littleton,  36  b.)  Before  this 
statute  the  widow  would  not  have  been  endowed  of  the  lands  of  which  the 
husband  only  had  the  use.  The  conversion  of  his  beneficial  interest  into 
the  legal  estate  amongst  other  legal  incidents  caused  the  right  of  the 
widow's  dower  to  attach,  and  thus  the  wife  who  had  been  provided  for  by 
means  of  a  jointure  would,  but  for  this  provision,  have  derived  an  additional 
benefit  from  that  statute  which  had  not  been  contemplated.  It  was  there- 
fore provided  that  a  jointure  properly  created  before  marriage  should  be  a 
bar  to  dower ;  and  thus  the  law  remains  at  the  present  day. 

T  2 


%']6  Uses.  [chap.  VII. 

tranquillity  and  rest  of  his  loving  subjects,  of  his  most  excellent 
and  accustomed  goodness  is  pleased  and  contented  that  it  be 
enacted,  by  the  authority  of  this  present  parliament,  that  all 
manner  true  and  just  wills  and  testaments  heretofore  made  by 
any  person  or  persons  deceased,  or  that  shall  decease  before  the 
first  day  of  May  that  shall  be  in  the  year  of  our  Lord  God  1536, 
of  any  lands,  tenements,  or  other  hereditaments,  shall  be  taken 
and  accepted  good  and  effectual  in  the  law,  after  such  fashion, 
manner,  and  form,  as  they  were  commonly  taken  and  used  at  any 
time  within  foi'ty  years  next  afore  the  making  of  this  act,  anything 
contained  in  this  act,  or  in  the  preamble  thereof,  or  any  opinion 
of  the  common  law  to  the  contrary  thereof  notwithltanding  ^. 

I  o.  Provided  always,  that  the  King's  Highness  shall  not  have, 
demand,  or  take  any  advantage  or  profit  for  or  by  occasion  of 
the  executing  of  any  estate  only  by  authority  of  this  act  to  any 
person  or  persons  or  bodies  politick,  which  now  have  or  on  this 
side  the  said  first  day  of  May  which  shall  be  in  the  year  of  our 
Lord  God  1536,  shall  have  any  use  or  uses,  trusts,  or  confidences 
in  any  manors,  lands,  tenements,  or  hereditaments  holden  of  the 
King's  Highness  by  reason  of  primer  seisin,  livery,  ouster-le-main, 
fine  for  alienation,  relief,  or  harriot,  but  that  fines  for  alienation, 
reliefs,  and  harriots,  shall  be  paid  to  the  King's  Highness,  and 
also  liveries,  and  ouster-le-maius  shall  be  sued  for  uses,  trusts, 
and  confidences,  to  be  made  and  executed  in  possession  by  autho- 
rity of  this  act,  after  and  from  the  said  first  day  of  May,  of 
lands,  and  tenements,  and  other  hereditaments  holden  of  the 
King  in  such  like  manner  and  form,  to  all  intents,  constructions, 
and  purposes  as  hath  heretofore  been  used  or  accustomed  by  the 
order  of  the  laws  of  this  realm. 

15.  Provided  also,  that  this  act  nor  anything  therein  con- 
tained, shall  not  be  prejudicial  to  the  King's  Highness  for  ward- 
ships of  heirs  now  being  within  age,  nor  for  liveries,  or  for 
ouster-le-mains,  to  be  sued  by  any  person  or  persons  now  being 
within  age,  or  of  full  age,  of  any  lands  or  tenements  unto  the 
same  heir  or  heirs  now  already  descended  ;  anything  in  this  act 
contained  to  the  contrary  notwithstanding. 

§  2.  Effect  of  tlie  Statute  of  Uses  upon  the  'power  of  dealing 
with  the  Legal  Estate  in  Lands. 

The  Statute  of  Uses  at  once  produced  important  effects  upon 
the  old  modes  of  conveying  the  legal  estate  in  lands.     It  has 

1  See  Chap.  VIII. 


§  2.]  W^^^  ^f  ^^^^  Statute  of  Uses.  277 

been  already  seen  what  were  the  appropriate  modes  of  conveying 
freehold  estates  at  common  law.  If  the  freehold  was  to  pass 
immediately  from  the  grantor  to  the  grantee,  feoffment  with 
livery  of  seisin  was  the  only  appropriate  mode.  In  practice  the 
same  result  was  accomplished  by  the  fictitious  processes  of  fines 
and  recoveries.  It  has  also  been  seen  under  what  cii'cumstances 
the  Chancellor  would  before  the  Statute  have  held  that  the 
party  taking  by  the  common  law  conveyance  would  hold  to  the 
use,  not  of  himself,  but  of  the  gi-antee  or  some  other  person. 
Wherever,  with  certain  exceptions  to  be  hereafter  noticed  ^  before 
the  Statute  such  a  constniction  would  have  been  put  upon  the 
conveyance  by  the  Chancellor — wherever  a  use  would  have  been 
raised  in  favour  of  some  person  other  than  the  feoffee  or  grantee 
at  common  law,  by  reason  either  of  an  express  declaration  of 
the  use,  or  of  circumstances  from  which  the  intention  of  raisins 
the  use  would  necessarily  have  been  inferred,  in  all  such  cases 
after  the  Statute  the  legal  estate  passed  to  the  person  in  whose 
favour  the  use  was  declared  or  implied. 

Thus  if  a  feoffment,  a  fine,  or  a  recovery  was  made,  levied,  or 
suffered  to  A  and  his  heirs  to  the  use  of  B  for  ten  years,  and  sub- 
ject thereto  to  the  use  of  C  for  life,  and  after  Cs  decease  to  the  use 
of  D  in  tail,  with  remainder  to  the  use  of  E  in  fee,  the  various 
estates  would  take  effect  by  virtue  of  the  Statute  according  to  the 
several  limitations,  just  as  if  a  valid  conveyance  of  them  had  been 
made  operative  at  common  law.  The  livery  of  seisin  necessary  to 
pass  the  fi-eehold  by  feoffment  need  only  have  been  made  to  A,  the 
Statute  is  then  called  into  operation,  and  is  powerful  enough,  with- 
out anything  further,  to  take  the  property  from  A  and  to  vest 
it  in  the  various  persons  according  to  their  specified  interests. 

In  the  same  way,  if  a  feoffment  was  made  by  ^  to  j5  and 
his  heirs  without  consideration,  the  use  would  before  the  Statute, 
as  has  been  befoi-e  seen,  have  been  held  to  come  back  to  A.  The 
Statute  '  executes'  this  use,  and  the  legal  as  well  as  the  beneficial 
interest  results,  or  comes  back  to  the  feoffor. 

*  Active  trusts,  trusts  of  leasehold  interests,  and  uses  upon  uses.    See 
below,  §  4. 


278  TJses.  [chap.  vir. 

The  distinction  made  in  the  text-books  between  the  raising  of 
a  use  by,  or  rather  together  with,  transmutation  of  possession, 
and  raising  a  use  without  transmutation  of  possession,  has  already 
been  noticed  ^.  A  use  is  raised  by  transmutation  of  possession 
when  a  mode  of  conveyance  is  employed  sufficient  at  common  law 
to  take  the  estate  out  of  the  donor  and  to  vest  it  in  the  donee. 
To  this  conveyance  is  superadded,  either  by  express  words  or  by 
necessary  implication,  the  obligation  upon  the  donee  to  hold  to 
the  use  of  the  donor  or  of  some  third  person,  or  of  the  donor 
together  with  some  third  person. 

Instances  of  dispositions  of  land  of  this  kind  would  be, 
feoffment  by  yl  to  ^  to  the  use  of  C,  conveyance  by  way  of  fine 
or  recovery  from  A  io  B  to  the  use  of  A  and  C,  feoffment  by 
A  to  B  without  consideration.  In  these  cases  no  estate  vests 
permanently  in  B.  The  common  law  seisin  which  is  given  to 
him  serves  only  to  bring  the  Statute  into  operation.  In  the  first 
of  the  above  cases  the  legal  estate  vests  at  once  in  C,  in  the  second 
in  A  and  (7  jointly,  in  the  last  it  resiilts  at  once  or  comes  back 
to  A. 

Uses  are  raised  without  transmutation  of  possession  when  the 
le^al  owner  of  lands  binds  himself  to  hold  the  lands  for  the  use 
of  some  other  person.  It  has  already  been  seen  that  the  usual 
mode  of  effecting  this  before  the  Statute  was  by  bargain  and 
sale,  or  covenant  to  stand  seised^.  In  these  cases  the  use  which 
before  the  Statute  was  raised  in  favour  of  the  covenantee  or 
bargainee  is  now  executed  by  the  Statute,  and  thus  these  two 
assurances  take  their  place  as  modes  of  conveying  the  legal 
interest  in  lands.  Thus  A  covenants  to  stand  seised  for  B  his 
eldest  son  and  his  heirs,  or  in  consideration  of  £100  paid  down 
bargains  and  sells  his  lands  to  C  and  his  heirs.  B  and  C  by 
force  of  the  statute  take  an  estate  in  fee  simple  in  precisely  the 
same  way  as  if  that  estate  had  been  conveyed  to  them  respec- 
tively by  feoffment  at  common  law. 

It  will  be  easily  seen  that  the  Statute  at  once  enabled  a  tenant 

»  See  above,  p.  25a.  ^  See  above,  p.  253. 


§  2.]  Effect  of  the  Statute  of  Uses.  279 

in  fee  simple  to  deal  with  his  lands  in  Avays  which  would  have 
been  impossible  at  common  law.  For  instance,  at  common 
law  a  man  cannot  convey  to  liimself  any  interest  in  lands. 
Thus,  suppose  A  and  B  are  jointly  seised  of  lands  as  trustees \ 
and  A  dies,  whereby  the  whole  estate  vests  in  J?,  and  it  is 
desired  to  appoint  C  a  new  trustee,  and  to  vest  the  lands  in  B 
and  C jointly^.  Before  the  Statute  it  would  have  been  neces- 
sary for  B  to  make  a  feoffment  with  livery  to  D  and  his  heirs, 
so  that  D  might  make  a  feoffment  with  livery  to  B  and  C  and 
their  heirs ;  after  the  Statute  the  same  object  might  be  effected 
by  one  conveyance,  namely,  to  D  and  his  heirs  to  the  use  of 
B  and  G  and  their  heirs.  This  is  the  ordinary  mode  of  vesting 
trust-estates  in  a  new  trustee. 

So  by  bringing  the  Statute  into  operation  a  man  may  convey 
a  legal  estate  to  his  wife,  which  is  impossible  at  common 
law  ^. 

One  of  the  immediate  effects  of  the  Statute  was,  as  has  been 
seen,  to  give  legal  validity  and  effect  to  '  bargains  and  sales.' 
These  transactions  required  no  particular  ceremony,  no  open  or 
notorious  act,  such  as  livery  of  seisin ;  and  thus  one  of  the 
great  objects  of  the  Statute,  the  prevention  of  secret  convey- 
ances, would  have  been  eluded.  This  was  at  once  perceived 
by  the  legislatm-e,  and  in  the  same  year  a  second  Act  was 
passed  intended  to  prevent  the  mischief  of  secret  bargains  and 
sales  by  providing  for  their  enrolment  in  one  of  the  superior 
courts  or  before  the  custos  rotulorum  of  the  county  in  which  the 
lands  were  situate  *. 

Another  effect  of  the  Statute  of  Uses  was  to  introduce  at 
once  modes  of  dealing  with  the  legal  interest,  in  respect  to  the 

'  As  to  trustees  see  below,  §  4. 

^  As  to  joint  tenants  see  above,  Chap.  V.  §  4.  Observe  that  a  simple 
conveyance  of  a  moiety  by  i?  to  C  would  make  B  and  C  tenants  in  common 
and  not  joint  tenants,  a  kind  of  interest  much  less  suitable  to  the  position 
of  trustees,  as  each  trustee  would  in  that  case  have  a  separate  inheritance 
which  would  devolve  on  their  respective  representatives. 

^  8ugden's  Gilbert  on  Uses,  p.  150. 

*  See  below,  §    . 


28o  Uses.  [chap.  vii. 

period  and  conditions  of  its  commencement  and  termination, 
which  were  wholly  unknown  to  the  common  law. 

It  has  been  shown  in  the  last  chapter  that  before  the  Statute 
the  Chancellor  was  in  the  habit  of  enforcing  uses  created  so  as 
to  arise  at  a  future  time.  Such  limitations  now  became  effectual 
also  at  law,  and  conveyancers  were  thus  enabled  to  introduce 
limitations  of  much  greater  complication,  in  dealing  with  the 
legal  estate,  than  was  possible  at  common  law. 

This  will  be  best  understood  by  examples.  When  once  a 
conveyance  is  made  effectual  to  give  the  common  law  seisin  in 
fee  to  the  grantees  to  uses,  any  number  of  uses  may  be  created 
to  arise  in  succession.  Tn  other  words,  interests  may  be  given 
within  certain  limits  (to  be  explained  presently)  to  a  greater 
number  of  persons,  and  to  arise  and  come  to  an  end  on  a  greater 
variety  of  contingencies  than  was  possible  at  the  common  law. 
For  instance,  a  person  in  contemplation  of  the  marriage  of  his 
eldest  son  wishes  to  settle  lands  upon  him  and  upon  the  issue 
of  the  marriage.  A  therefore,  the  settlor,  conveys  the  lands  to 
B  and  C  and  their  heirs  to  the  use  of  himself  and  his  heirs 
until  the  intended  marriage.  A  therefore  takes  back  to  himself 
an  estate  in  fee  simple  until  the  marriage  takes  place,  and  if  it 
does  not  take  place  at  all,  no  actual  change  occurs  in  his  rights 
of  property  over  the  land.  The  next  limitation  may  be  after 
the  marriage,  to  the  use  of  B  and  C  (the  trustees)  for  a  term  of 
99  years  upon  certain  trusts,  e.g.  to  pay  a  sum  for  pin-money 
to  the  wife  during  the  marriage.  The  next  limitation  may  be 
after  the  determination  of  the  said  term  and  in  the  meantime 
subject  thereto  and  to  the  ti'usts  thereof,  to  the  use  of  A  the 
settlor  for  life.  This  would  not  be  possible  at  the  common  law, 
for  no  estate  could  be  limited  after  a  fee  simple,  nor  could  a 
man  convey  any  interest  to  himself;  but  as  before  the  Statute 
there  was  nothing  to  prevent  the  trustees  being  bound  to  hold 
to  a  different  trust  upon  the  happening  of  a  specified  event,  so 
there  is  nothing  since  the  Statute  to  prevent  the  legal  estate 
in  fee  simple  changing  on  the  happening  of  the  specified  event 
to  a  legal  estate  for  life.     Then  after  A's  death  to  the  use  of 


§  2.]  Shifting  and  Springing  Uses.  281 

his  eldest  son  for  life.  This  is  a  vested  remainder,  as  explained 
in  Chapter  V.  Then  to  the  use  of  such  son's  eldest  son  in  tail. 
This  gives  a  contingent  remainder  to  the  eldest  son,  and  is 
usually  followed  by  similar  remainders  to  other  sons  and  other 
provisions,  last  of  all  by  a  remainder  to  the  use  of  A  and  his 
heirs,  or  of  the  heirs  of  A  for  ever,  Avhich  gives  A  an  ulthnate 
remainder  in  fee  simple. 

A  case  is  repoi'ted  where  a  man  bargained  and  sold  in  fee 
part  of  his  estate  and  covenanted  to  give  the  bargainee  the 
offer  of  the  residue,  and  that  if  he  attempted  to  alien  the 
residue  to  another  that  then  he  would  stand  seised  to  the  use 
of  the  bargainee  in  feeV  The  event  subsequently  happened, 
the  bargainor  did  attempt  to  alien  the  residue  to  another,  and 
it  was  held  that  the  use  thereupon  arose  in  favour  of  the  bar- 
gainee, and  that  the  legal  estate  passed  to  him.  So,  although 
at  common  law  a  feoffment  could  not  be  made  to  take  effect  at 
a  future  time,  a  feoffment  to  A  and  his  heirs  to  the  use  of  B 
and  his  heirs  at  the  death  of  J.  S. — a  living  person — would  be 
valid,  and  upon  the  death  of  J.  S.  the  legal  estate  would  vest 
in  B,  the  use  in  the  meantime  resulting  to  A. 

The  above  instances  may  suffice  to  suggest  a  distinction  which 
is  usually  made  between  what  are  called  (i)  shifting  uses,  (2) 
springing  uses,  {^)  future  or  contingent  uses,  or,  more  properly, 
uses  limited  to  take  effect  as  remainders. 

The  distinction  between  the  first  two  of  the  above  classes  is 
of  less  importance  than  the  distinction  between  those  two  classes 
and  the  third. 

A  shifting  use  is  where  a  use  has  been  properly  created,  and 
then  upon  the  happening  of  some  specified  event  the  interest 
first  created  passes  away  fi'om  the  person  enjoying  it,  and  vests, 
partially  or  wholly,  in  some  other  person.  For  instance,  if 
lands  are  given  to  A  and  his  heirs  to  the  use  of  B  and  his  heirs, 
but  if  B  die  in  the  lifetime  of  A  then  to  the  use  of  C  and 
his   heirs.     Upon  the  death  of  B  in  A's  lifetime  the   use  is 

'  Sugden's  Gilbert,  p.  i6i.  Rolle's  Abridgment,  p.  7S6.  M,  40  and 
41  Elizabeth. 


a82  Uses.  [chap.  vit. 

said  to  shift  to  C\  Again,  a  provision  is  often  made  by  way 
of  the  creation  of  a  shifting  use  for  an  estate  shifting  away 
from  the  person  to  whom  it  is  first  given  to  some  other  member 
of  the  family  on  the  acquisition  of  some  other  estate.  Thus 
by  the  aid  of  shifting  uses  the  old  rules  as  to  the  creation  of 
future  estates  by  way  of  remainder  may  be  evaded,  a  future 
freehold  interest  can  now  since  the  Statute  be  created  by  way  of 
shifting  use  to  take  effect  without  waiting  for  the  determination 
of  a  particular  estate,  and  an  estate  iu  fee  simple  can  by  the 
same  method  be  made  to  pass  from  one  person  to  anothei'.  Nor 
can  any  alienation  or  disposition  of  the  lands  by  the  first  cestui 
que  use  affect  the  interest  of  the  person  who,  upon  the  happening 
of  the  specified  contingency,  is  entitled  to  the  use  of  the  lands  ^. 

Springing  uses  differ  from  shifting  uses  merely  in  the  fact 
of  their  arising  by  virtue  of  the  mode  of  their  creation  as  new 
uses,  and  not  operating  by  way  of  shifting  of  a  use  already 
created  from  one  person  to  another.  Thus  the  instance  of  a  bar- 
gain and  sale  and  covenant  above  given,  and  a  feoffment  to  take 
effect  in  future,  are  instances  of  the  creation  of  springing  uses  '. 

Both  sliifting  and  springing  uses  are  subject  to  the   '  rule 

'  Shifting  uses  appear  to  have  been  introduced  very  soon  after  the 
passing  of  the  Statute  of  Uses.  Brooke's  Abridgment,  Feoffment  al  Uses, 
330  b,  no.  30,  gives  an  instance  in  6  Edward  VI.  The  report  concludes, 
'  Et  ideo  vide  que  homme  al  cest  jour  poit  faire  feofl&nent  al  use,  et  que 
I'use  changera  de  un  in  autre  par  act  ex  post  facto  par  circumstance,  si 
blen  que  il  sera  devant  I'estatute  27  H.  VIII.  de  uses.' 

"^  Compare  Markby's  Elements  of  Law,  p.  155,  note. 

3  There  is  an  instance  of  a  springing  use  in  Brooke's  Abridgment,  331  b, 
50,  in  30  Henry  VIII,  three  years  after  the  passing  of  the  Statute  of  Uses. 
'  If  A  covenant  with  B  that  when  A  shall  be  enfeoffed  by  -B  of  3  acres  in 
D,  that  then  the  said  A  and  his  heirs  and  all  others  seised  of  the  land  of  A 
in  8,  shall  be  seised  of  it  to  the  use  of  the  said  B  and  his  heirs,  then  if  A 
make  a  feoffment  of  his  land  in  8,  and  then  B  enfeoff  A  of  the  said  3  acres 
of  land  in  B,  then  the  feoffee  of  A  shall  be  seised  to  the  use  of  B,  notwith- 
standing that  he  had  no  notice  of  the  use,  for  the  land  is  and  was  bound  by 
the  aforesaid  use,  into  whosesoever  hands  it  might  come,  and  it  is  not  like 
the  case  where  the  feoffee  to  uses  sells  the  land  to  one  who  has  no  notice 
of  the  first  use,  for  in  the  first-mentioned  case  the  use  had  no  existence 
until  the  feoffment  of  the  3  acres  was  made,  and  then  the  use  commenced.' 


§  2.]  Future  Uses.  283 

against  perpetuity,'  the  history  and  nature  of  which  will  be 
noticed  presently. 

Future  or  contingent  uses,  or,  as  they  might  be  called,  uses 
limited  as  remainders,  present  somewhat  different  features.  By 
a  series  of  decisions  the  rule  has  been  established  that  if  a  limi- 
tation can  be  regarded  as  a  remainder  it  shall  not  be  regarded 
as  a  springing  or  shifting  use  ^  Nor  is  this  rule  affected  by 
the  consideration  that  the  use  may  be  void  if  the  stringent 
requirements  which  the  common  law  demanded  in  the  case  of 
contingent  remainders  are  not  complied  with.  Thus  if  it  un- 
fortunately happens  that  the  conveyancer  in  drawing  the  deed 
has  expressed  the  conditions  on  which  the  future  use  is  to  arise 
in  such  a  way  that  the  future  estate  can  be  construed  as  a 
remainder,  and  if,  at  the  same  time,  such  remainder  is  contrary 
to  the  old  common  law  rules  affecting  remainders,  which 
have  long  ceased  to  be  founded  on  any  substantial  reason, 
the  future  interest  from  this  defect  in  point  of  law  is  invalid. 
For  instance,  if  a  conveyance  be  made  to  B  and  his  heirs  to  the 
use  of  A  for  i  o  years,  remainder  to  the  use  of  the  heirs  of  J.  S., 
the  remainder  is  void,  being  a  contingent  remainder  limited  upon 
an  estate  for  years  ^.  The  fact  that  if  the  limitation  did  not 
happen  to  fall  within  the  definition  of  a  remainder,  it  might  be 
good  as  a  springing  use,  is  utterly  disregarded.  Perhaps  in  no 
point  is  the  extreme  technicality  of  the  rules  relating  to  uses, 
owing  no  doubt  in  part  to  the  ideas  spoken  of  at  the  commence- 
ment of  this  chapter,  more  conspicuous. 

One  of  the  commonest  modes  of  calling  into  operation  the 
Statute  of  Uses  is  by  the  creation  of  what  are  called  powers  of 
appointment,  that  is,  conferring  on  a  person  a  power  of  dis- 
posing of  an  intei'est  in  lands  quite  irrespective  of  the  fact 
whether  or  not  he  has  any  interest  in  the  land  himself.  The 
creator  or  donor  of  the  power  in  disposing  of  the  lands  makes  a 
conveyance  operative  at  common  law,  and  at  the  same  time 
declares  that  such  and  such  uses  are  to  arise  on  the  execution 
of  a  proper  instrument  by  a  designated  person.     This  is  called 

^  See  Sugden's  note  to  Gilbert  on  Uses,  p.  172.  '^  lb.  p.  165. 


284  Uses.  [chap.  VII. 

technically  giving  to  a  person  a  power  of  appointment,  and  the 
instrument  when  executed  operates  as  an  appointment.  The 
estate  which  passes  under  the  power  of  appointment  comes  not 
from  the  donee  of  the  power,  but  from  the  original  settlor  ^ ;  the 
only  difference  between  an  interest  thus  created  and  an  imme- 
diate conveyance  being,  that  instead  of  the  uses  being  declared 
by  the  original  settlor  at  the  time  of  the  conveyance  of  the  legal 
estate,  it  is  left  to  a  third  person  to  declare  them. 

Thus  it  is  common  in  ordinary  purchase  deeds  of  land,  where 
the  purchaser  was  married  before  Jan,  i,  1834^,  to  introduce 
provisions  of  this  kind  in  order  to  bar  effectually  any  claim  to 
dower  on  the  part  of  his  widow  by  avoiding  giving  the  purchaser 
an  estate  of  inheritance  in  possession  at  all,  and  at  the  same 
time  enabling  him  to  dispose  of  the  lands  for  any  estate  during 
his  life.  This  is  effected  by  conveying  the  lands  to  A  and  his 
heirs  to  such  uses  etc.  as  £  (the  purchaser)  shall  appoint,  and 
in  default  of  and  until  appointment  to  the  use  of  £  for  life, 
remainder  to  the  use  of  A  and  his  heirs  during  the  life  of  £  ^, 
remainder  to  the  use  of  B  and  his  heirs.  Under  these  limita- 
tions B  never  has  more  than  an  estate  for  life  in  possession,  and 
therefore  his  widow's  dower  cannot  attach.  At  the  same  time, 
by  exercising  the  power  of  appointment  he  can  in  effect  convey 
an  estate  in  fee  simple  to  any  other  person  *. 

*  This  is  important  to  remember,  as  certain  practical  consequences  follow. 
Amongst  others,  the  amount  of  succession  duty  payable  is  often  affected  by 
the  consideration  whether  the  donee  takes  from  the  settlor  who  created  the 
power,  who  may  be  a  near  relation,  or  from  the  person  who  has  executed 
the  power  in  his  favour,  who  may  be  a  stranger  in  blood. 

*  When  the  Dower  Act  (3  and  4  Will.  IV,  c.  105)  came  into  operation, 
by  which  a  simpler  method  of  barring  dower  was  introduced. 

^  A  vested  remainder  which  might  by  possibility  take  effect  by  the 
determination  oi  B's  life  estate  by  any  means  in  his  lifetime,  and  is  there- 
fore sufficient  to  keep  apart  B's  life  interest,  and  prevent  it  merging  in  the 
ultimate  remainder  in  fee. 

*  Sometimes  a  person  has  an  estate  in  fee  simple  and  also  a  general 
power  of  appointment.  In  this  case  he  can  convey  either  by  exercising  his 
power  or  conveying  his  estate  in  the  ordinary  way.  In  the  former  case 
the  exercise  of  the  power  defeats  and  divests  his  own  estate  :  in  the  latter 
case  the  conveyance  of  the  estate  extinguishes  the  power. 


§  2.]  Rule  against  Perpetuity.  285 

Powers  of  appointment  are  sometimes  general,  and  may  be 
exercised  by  the  creation  of  any  estate  in  favour  of  any  one,  in- 
cluding the  donee  of  the  power  himself  or  his  wife.  Sometimes 
they  are  special,  and  can  only  be  exercised  by  creating  some 
particular  kind  of  estate,  or  in  favour  of  particular  persons  or 
classes  of  persons. 

The  forms  prescribed  in  the  instrument  creating  the  power 
must  be  strictly  observed,  otherwise  the  power  will  not  have 
been  effectually  executed.  For  instance,  the  power  may  be 
given  to  be  exercised  by  deed,  in  which  case  a  will  purj)orting 
to  exercise  it  would  be  inoperative,  and  vice  versa  \ 

Other  instances  of  the  common  employment  of  powers  of 
appointment,  are  to  enable  tenant  for  life  to  make  leases  of  a 
duration  greater  than  would  otherwise  be  possible " ;  powers  of 
sale  and  exchange  of  settled  lands,  whereby  some  of  the  lands 
comprised  in  the  settlement  may  be  freed,  and  new  lands  pur- 
chased in  their  place  and  burdened  with  the  uses  of  the  settle- 
ment. 

When  modes  of  creating  future  interests  in  lands  by  means  of 
shifting  and  springing  uses  became  common,  a  question  of  great 
importance  presented  itself  for  solution,  as  to  the  period  within 
which  interests  by  way  of  uses  arising  at  a  future  time  might  be 
created.  It  is  plain  that  unless  some  limit  of  time  had  been 
adopted,  limitations  might  have  been  introduced  into  settlements 
by  which  estates  might  have  been  divested  and  created  at  remote 
periods,  and  thus  in  effect  an  unreasonable  restraint  on  aliena- 
tion of  lands  might  be  introduced.  And  when,  as  will  be 
explained  in  the  next  chapter,  the  power  of  disposing  of  lands 
by  will  was  made  part  of  the  general  law  of  the  land,  and  wills 
were  regarded  as  resembling  conveyances  to  uses  rather  than  as 

*  For  certain  relaxations  as  to  the  strictness  which  the  law  requires  to 
execution  of  powers,  and  as  to  the  relief  which  in  some  cases  may  be 
obtained  in  a  Court  of  Equity  against  defective  execution  of  powers,  see 
Williams,  Real  Property,  p.  288  etc. 

*  Before  the  Leases  and  Sales  of  Settled  Estates  Act,  1856,  19  and  20 
Vict.  c.  1 20,  tenant  for  life  could  not  make  a  lease  which  would  be  valid 
after  his  decease  except  by  way  of  execution  of  a  power. 


286  Uses.  [chap.  vii. 

instruments  oi^erating  at  common  law,  tlie  same  question  arose 
still  more  frequently  upon  the  effect  of  devises  of  future  interests 
in  land,  or,  as  they  were  called,  executory  devises. 

What  limits  then  are  imposed  by  law  regulating  the  time 
within  which  future  or  executory  interests  in  land  created  by 
instruments  operating  under  the  Statute  of  Uses  or  by  will  must 
take  effect  1  It  has  already  been  seen  that  the  creation  of  future 
estates  by  way  of  remainder  is  limited  by  the  rule  that  an  estate 
given  to  an  unborn  person  for  life  cannot  be  followed  by  any 
estate  given  to  any  child  of  such  unborn  person  ^.  It  followed 
from  this  that  the  great  object  of  settlements  of  lands,  the  pre- 
serving them  in  the  settlor's  family,  could  be  attained  only  to 
the  extent  of  giving  an  estate  tail  to  an  unborn  member  of  the 
family.  But  this  estate,  after  the  introduction  of  the  practice 
of  suffering  recoveries,  was  always  liable  to  be  turned  into  a  fee 
simple  and  alienated,  so  soon  as  the  tenant  in  tail  came  of  age. 
The  result  was  that  settlements  operating  by  way  of  creating 
estates  in  remainder  could  not  absolutely  prevent  the  alienation 
of  lands  for  a  longer  period  than  during  a  life  or  lives  in  being 
and  twenty-one  years  after.  To  this  must  be  added  a  few 
months  in  the  event  of  tenant  in  tail  being  en  ventre  sa  mere 
at  the  time  of  the  dropping  of  the  previous  life  estate. 

Future  estates  created  by  way  of  executory  devise  and 
springing  or  shifting  uses  required  the  invention  of  other 
rules  as  to  the  period  within  which  such  interests  must  arise  ^. 
The  earlier  cases  tend  to  limit  the  creation  of  such  estates  by  the 
rule  that  they  can  only  take  effect  after  a  life  in  being.  Next, 
this  limit  seems  to  have  been  extended  to  embrace  the  case  of  an 
infant  taking  under  an  executory  devise  or  by  way  of  future  use ; 
such  limitations  were  upheld  to  the  extent  of  allowing  the 
vesting  of  the  estate  at  the  time  of  the  infant  attaining  majority 

^  See  Williams  on  Real  Property,  pp.  264-266.  The  rule  is  there  traced 
to  Sir  Edward  Coke's  metaphysical  distinction  between  a  single  or  com- 
mon and  a  double  or  remote  possibility. 

^  See  the  earlier  cases  quoted  and  commented  upon  in  the  argument  of 
Sir  E.  Sugden  in  Cadell  v.  Palmer,  i  Clark  and  Einnelly,  372. 


§  3-]  Statute  of  Enrolments.  387 

after  the  dropping  of  a  life  in  being.  Finally,  in  Cadell  v. 
Palmer '  it  was  held  that  future  interests  might  be  created  by 
way  of  executory  devise  or  springing  use  to  take  effect  twenty- 
one  years  after  the  di-opping  of  a  life  or  lives  in  being  without 
reference  to  minority.  Thus  the  power  of  a  person  having  an 
estate  in  fee  simple  over  his  land  has  been  to  some  extent  ex- 
tended by  judicial  legislation.  Any  attempt  however,  directly 
or  indirectly,  to  evade  the  'rule  against  perpetuities'  by  con- 
trolling the  alienation  of  lands  for  a  longer  period  than  a  life  or 
lives  in  being  and  twenty-one  years  after  is  void^.  Thus  if 
lands  be  granted  to  A  and  his  heirs  to  the  use  of  B  and  his  heirs 
until  failure  of  the  issue  of  C,  and  upon  such  failure  to  D  and 
his  heirs,  the  last  limitation  would  be  void,  because  it  might  be 
that  the  failure  of  the  issue  of  G  would  not  happen,  if  at  all,  till 
a  distant  period. 

§  3.  Statute  of  Enrolments. 

The  main  provisions  of  the  following  Statute  have  been 
already  referred  to^  A  bargain  and  sale  enrolled  under  its 
provisions  is  still  a  possible  mode  of  conveying  a  freehold 
interest  in  lands. 

An  examination  of  the  language  of  the  Statute  shows  that 
its  provisions  only  extend  to  prevent  any  estate  of  inheritance 
or  freehold  being  created  without  the  observance  of  the  pre- 
scribed forms.     The    Statute  therefore   did    not  extend  to  the 


^  1  Clark  and  Finnelly,  372. 

^  John  Duke  of  Maiiborough  devised  lands  to  trustees  in  trust  for 
several  persons  for  life,  with  remainders  to  their  first  and  other  sons  in  tail 
male  successively,  and  directed  the  trustees  upon  the  birth  of  every  son 
of  each  tenant  for  life  to  revoke  the  uses  before  limited  to  their  respective 
sons  in  tail  male,  and  to  limit  the  lands  to  such  sons  for  their  lives,  with  re- 
mainders to  the  respective  sons  of  such  sons  in  tail  male.  It  was  held  by 
Lord  Keeper  Henley  (1759)  ^"^^^  ^^^  clause  of  revocation  and  resettlement 
as  tending  to  a  perpetuity  and  being  repugnant  to  the  estate  limited  was 
void.     I  Eden's  Reports,  404. 

^  See  above,  p.  279. 


288  Uses.  [chap.  vii. 

creation  of  a  term  of  years  to  arise  by  way  of  bargain  and  sale 
out  of  an  estate  of  freehold.  If  A,  tenant  in  fee  simple, 
bargained  and  sold  bis  lands  to  B  for  ten  years,  there  was 
no  necessity  for  any  enrolment,  or  even  for  any  writing  to 
evidence  the  transaction.  The  Statute  of  Uses  at  once  operated 
upon  the  bargain  and  sale ;  one  person,  the  bargainor,  was  seised 
to  the  use  of  another,  the  bargainee,  and  there  was  no  necessity 
for  enrolment,  inasmuch  as  the  bargain  and  sale  did  not  purport 
to  create  an  estate  of  inheritance  or  freehold. 

After  a  time  an  ingenious  conveyancer^  bethought  him  of  avail- 
ing himself  of  a  bargain  and  sale  as  a  secret  mode  of  conveying 
freehold  interests  in  lands,  thus  avoiding  the  necessity  of  any 
livery  of  seisin  or  of  enrolment.  It  was  after  some  doubt  at  length 
held  by  the  Court  of  Wards  ^  that  a  bargain  and  sale  for  a  term 
of  years  gave  to  the  lessee  by  force  of  the  words  of  the  Statute  of 
Uses  '  possession '  of  his  term  as  if  he  had  actually  entered  on  the 
land,  at  all  events  for  the  purpose  of  being  capable  of  taking  by 
a  simple  deed  a  release  of  the  reversion  ^.  Thus  if  A,  tenant  in 
fee  simple,  bargained  and  sold  the  manor  of  Dale  to  B  for  a  year, 
and  the  day  after  executed  a  release  of  the  reversion  in  fee  to  B 
and  his  heirs,  he  would  by  the  bargain  and  sale  have  immediately 
vested  in  him  an  estate  for  a  year  in  possession.  He  would 
thereupon  become  capable  of  taking  a  release,  and  so  soon  as  the 
release  was  executed,  the  smaller  estate  and  the  larger  would 
coalesce  and  the  term  be  'merged'  or  sunk  in  the  larger  estate, 
whereupon  B  would  become  tenant  in  fee  simple  in  possession  *. 
So  popular  did  this  conveyance  become,  that  in  ordinary  cases 
it  entirely  superseded  the  feoffment,  and  bargain  and  sale  en- 
rolled, and  became  the  general  mode  of  conveying  freeholds  inter 
vivos  till  the  year  184 1.  In  that  year  an  act  was  passed  'for 
rendering  a  release  as  effectual  for  the  conveyance  of  freehold 
estates  as  a  lease  and  release  by  the  same  parties  ^'     This  Act 

^  See  Fonblanque  on  Equity,  ii.  p.  12. 

"  In  the   18th  of  James  I.      Lutwidge  v.    Mitton,   Croke's   Reports, 
James,  604. 
^  See  above,  p.  187.  *  See  above,  Chap.  V.  §  i. 

^  4  and  5  Vic.  c.  21. 


§  3-]  Statute  of  Enrolments.  289 

was  repealed  in  1844  by  the  Act  to  simplify  tlie  Transfer  of  Pro- 
perty^ ;  and  in  1845  the  last-mentioned  Act  was  in  its  turn  re- 
pealed and  superseded  by  the  provisions  of  the  Act  to  amend 
the  Law  of  Ileal  Property  ^  The  second  section  of  this  act 
gives  the  power  of  creating  and  ti'ansferring  a  freehold  estate  in 
possession  by  a  simple  deed  of  grant.  The  effect  of  the  Statute 
of  Uses  is  however  still  preserved,  and  a  grant  to  uses  under  the 
Act  to  amend  the  Law  of  Real  Property  operates  in  precisely 
the  same  way,  and  is  subject  to  precisely  the  same  rules  as  any 
of  the  other  conveyances  to  uses  above  noticed. 

27  Henry  VIII,  cap.  16. 

An  Act  concerning  Enrolments  op  Bargains  and 
Contracts  of  Lands  and  Tenements. 

Be  it  enacted  by  the  authority  of  this  pi'esent  parliament, 
that  from  the  last  day  of  July,  which  shall  be  in  the  year  of 
our  Lord  God  1536,  no  manors,  lands,  tenements,  or  other 
hereditaments,  shall  pass,  altei',  or  change  from  one  to  another, 
whereby  any  estate  of  inheritance  or  freehold  shall  be  made 
or  take  effect  in  any  person  or  persons,  or  any  use  thereof  to 
be  made,  by  reason  only  of  any  bargain  and  sale  thereof, 
except  the  same  bargain  and  sale  be  made  by  writing  indented, 
sealed,  and  enrolled  in  one  of  the  King's  Courts  of  Record 
at  Westminster,  or  else  within,  the  same  county  or  counties 
where  the  same  manors,  lands,  or  tenements  so  bargained 
and  sold  lie  or  be,  before  the  Custos  Rotulorum  antl  two 
Justices  of  the  Peace,  and  the  Clerk  of  the  Peace  of  the  same 
county  or  counties,  or  two  of  them  at  the  least,  whereof  the  Clerk 
of  the  Peace  to  be  one;  and  the  same  enrolment  to  be  had  and 
made   within    six   months    next   after   the   date   of   the    same 

writings  indented And  that  the 

Clerk  of  the  Peace  for  the  time  being,  within  every  such 
county,  shall  sufficiently  enrol  and  engross  in  parchment  the 
same  deeds  or  writings  indented  as  is  aforesaid,  and  the  rolls 
thereof  at  the  end  of  every  year  shall  deliver  unto  the  said  Custos 

^  7  and  8  Vic.  c.  76. 
'  8  and  9  Vic.  c.  106. 

'  Observe  that  the  case  of  a  bargain  and  sale  by  A,  tenant  in  fee  simple,  ta 
the  use  of  B  for  years,  is  not  within  the  language  of  the  statute. 

U 


29^  Equitable  Estates.  [chap.  vii. 

Eotulorum  of  the  same  county  for  the  time  being,  there  to  remain 
in  the  custody  of  the  said  Gustos  Eotulorum  for  the  time  being, 
amongst  other  records  of  every  of  the  same  counties  where  any 
such  enrolment  shall  be  so  made,  to  the  intent  that  every  party 
that  hath  to  do  therewith  may  resort  and  see  the  effect  and 
tenor  of  every  such  writing  so  enrolled. 

§  4.  Equitable  Estates  in  Lands  since  the  Statute  of  Uses. 

The  object  of  the  framers  of  the  Statute  of  Uses  was  un- 
doubtedly to   do  away  with  the  distinction  between  the   legal 
estate  and  the  beneficial  interest  in  lands  which  had  given  rise 
to  the  mischiefs  recited  in  the  preamble  of  the  Statute.     The 
properties  which  before  the  Statute  had   gathered  round  the 
beneficial  interest  or  use  under  the  judicial  legislation  of  the 
Chancellors  now  with  some  modification  attached  to  the  legal 
interest  in  land.     The  modifications  which  the  legal  interest  in 
lands  consequently  underwent,  the  increased  powers  of  dispo- 
sition and  control  which  the  owner  in  fee  acquired,  have  already 
been  traced.     But  in  some  points  the  Statute  fell  short  of  what 
was  required.      The  principle  that  a  conscientious    obligation 
unrecognised  by  the  law  might  be  enforced  by  the  Chancellor 
was  not  affected  by  the  Statute.  If  therefore  there  still  were  found 
cases  of  the  creation  of  legal  estates  upon  trust  for  certain  purposes, 
which   estates  could   not   be  executed  or   transferred  from  the 
common  law  grantee  to  the  beneficiary  by  the  force  of  the  Statute, 
it  would  be  still  within  the  power  of  the  Chancellor  to  decree 
that  the  conscientious  obligation  should  be  earned  out. 

This  occm-red  principally  in  three  cases  ^    In  the  first  place 

'  See  Equity  Cases  Abridged,  i.  383.  '  Notwithstanding  this  statute 
(27  Hen.  VIII,  c.  10)  there  are  three  ways  of  creating  an  use  or  a  trust 
which  still  remains  as  at  common  law,  and  is  a  creature  of  the  Court  of 
Equity,  and  subject  only  to  their  controul  and  direction.  1st.  Where  a 
man  seised  in  fee  raises  a  term  of  years  and  limits  it  in  trust  for  A  etc.,  for 
this  the  statute  cannot  execute,  the  termor  not  being  seised.  2ndly.  Where 
lands  are  limited  to  the  use  of  A  in  trust  to  permit  B  to  receive  the  rents 
and  profits,  for  the  statute  can  only  execute  the  first  use.  3rdly.  Where 
lands  are  limited  to  trustees  to  receive  and  pay  over  the  rents  and  profits 


§  4-]  Three  cases  of  Trusts.  391 

an  active  duty  might  be  imposed  on  the  grantee  of  the  land 
to  do  certain  acts  in  reference  to  it  for  the  benefit  of  some- 
body else.  Land  might  be  granted  to  A  upon  trust  to 
collect  and  pay  over  the  rents  to  B.  Here  it  would  be  evidently 
intended  that  A  should  be  legal  ownei',  but  a  conscientious  obli- 
gation would  bind  him  to  carry  out  the  trust  upon  which  he  had 
received  the  land.  Where  therefore  an  active  duty  is  imposed 
on  the  common  law  grantee,  the  use  or  trust  is  not  executed  by 
the  Statute,  but  it  is  left  to  be  enforced  by  the  Court  of  Chan- 
cery. It  is  not  always  in  practice  an  easy  matter  to  say  when 
the  trust  which  is  imposed  on  the  legal  owner  is  in  the  nature  of  an 
active  duty,  or  when  it  is  a  use,  trust  or  confidence  executed  by  the 
Statute.  If  lands  are  conveyed  to  A  upon  trust  to  allow  B  to 
receive  the  profits,  no  active  duty  being  imposed  on  A,  this  use 
is  within  the  Statute  and  is  executed,  the  legal  estate  vesting 
mB\ 

The  second  case  is  where  a  trust  is  declared  upon  a  leasehold 
interest.  It  has  already  been  seen  that  this  case  is  not  provided 
for  by  the  Statute  ^.  If  therefore  a  term  of  ten  years  be  given 
to  A  in  trust  for  B,  the  legal  estate  vests  in  A,  and  the  trust 
can  only  be  enforced  by  the  Court  of  Chancery. 

But  the  most  important  defect,  to  remedy  Avhich  the  jurisdic- 
tion of  the  Court  of  Chancery  was  ultimately  called  into  action, 
arose  from  the  strange  doctrine  laid  down  in  Tyrrell's  case. 

It  has  often  been  remarked  that  English  law  bears  traces  of 
the  realist  doctrines  of  the  Schoolmen.  To  deal  with  the 
conception  of  a  use  of  lands  as  if  it  were  a  real  thing,  and  to 

to  such  and  such  persons,  for  here  the  lands  must  remain  in  them  to 
answer  these  purposes:  and  these  points  were  agreed  to.  Trin.  1700.' 
Symson  and  Turner,  per  Curiam. 

*  This  distinction  was  taken  as  early  as  the  thirty-sixth  year  of  Henry  VIII. 
'  Home  fait  feoffment  in  fee  al  son  use  pur  term  de  vie  et  que  puis  son 
decease  J.  N.  prendra  les  profits,  ceo  fait  un  use  in  J.  N.  Contrar.  s'il  dit 
que  puis  son  mort  ses  feoffees  prendront  les  profits  et  liveront  eux  al  J.  N. : 
ceo  ne  fait  use  in  J.  N.,  car  il  nad  eux  nisi  par  les  mains  les  feoffees.' 
Brooke's  Abridgment,  Feoffment  al  Uses,  53. 

*  See  above,  pp.  271,  288. 

U  2 


292  Eqidtahle  Estates.  [chap.  vii. 

draw   practical   conclusions,   however   inconvenient,  from    this 
abstract  idea,  seemed  perfectly  natural  to  the  lawyers  of  the 
sixteenth  century.     Thus  it  was  a  matter  of  most  serious  con- 
sideration in  what  manner  the  use  could  be  preserved  so  as  to 
arise  and  take  effect  in  the  case  of  future  contingent  uses.     For 
instance,  in  a  conveyance  to  A  and  B  and  their  heirs  to  the  use 
of  G  and  his  heirs  till  the  marriage  of  D,  and  afterwards  to  the 
use  of  i)  for  life,  remainder  to  the  use  of  D's  eldest  son,  etc.,  it  was 
made  a  grave  question  whether  any  rational  account  could  be  given 
of  the  reason  why  these  future  uses  took  efiect.     The  ability  of 
the  common  law  seisin  to  furnish  forth  the  use  had  been  ex- 
hausted, it  had  supplied  the  vested  legal  interest  of  C  to  an 
extent  coextensive  with  itself,  but  how  was  it  to  suj^ply  that  of 
D  and  of  his  unborn  son  besides  %  Who  could  be  said  to  be  seised 
to  the  use  of  D's  unborn  son  ^  ?    It  is  impossible  even  to  state  these 
difficulties  in  language  intelligible  to  us,  so  completely  has  the 
mode  of  thought  which  gave  them  birth  passed  away.     But  such 
was  the  spirit  in  which  the  Statute  of  Uses  was  construed.   That 
'  a  use  could  not  be  engendered  of  a  use '  seemed  no  doubt  a 
natural  and  intelligible  proposition  to  Saunders,  Chief  Justice. 
It  is  a  specimen  of  a  rule  of  law  with  the  most  important  conse- 
quences springing  not  from  any  consideration  of  its  relation  to 
expediency  or  to  the  wants  of  the  community,  but  from  an  ex- 
aggerated conception  of  the  mysterious  qualities  possessed  by  '  a 
use  of  lands,'  and  the  consequences  which  flowed  from  them. 

^  Hence  the  wonderful  doctrine  of  scintilla  juris  which  required  an  act 
of  Parliament  (23  and  24  Vict.  c.  38.  s.  7)  for  its  abolition.  See  WUliams  on 
Real  Property,  pp.  283,  284.  A  curious  instance  of  the  tenacity  of  meta- 
physical ideas  may  be  seen  in  the  wording  of  this  section.  The  draughtsman 
found  it  necessary  to  say  that  the  estate  of  cestui  que  use  is  to  take  effect 
'by  force  of  and  by  relation  to  the  estate  and  seisin  originally  vested  in  the 
person  seised  to  the  uses  '  ?  What  meaning  can  be  attached  to  these  words  ? 
The  limitations  in  the  text  are  simply  a  mode  of  providing  that  upon  a 
given  event  J)  shall  take  the  estate,  that  upon  J)'s  death  it  shall  go  to  his 
eldest  son,  and  that  neither  C  nor  I>  shall  prevent  these  dispositions  taking 
effect  by  any  alienation.  The  curious  point  is  that  these  effects  of  the 
Statute  of  Uses  are  the  result  not  of  considerations  of  public  policy  in- 
fluencing either  the  legislature  or  the  tribunals,  but  of  the  supposed  logical 
consequences  of  the  metaphysical  conception  of  a  use. 


§  4-]  Use  upon  a  Use.  293 

Thus  the  doctrine  arose  that  there  could  not  be  a  use  upon  a 
use.  If  therefore  A  bargained  and  sohl  to  B  to  the  use  of  C, 
the  second  use  was  considered  wholly  void.  No  consideration 
was  paid  to  the  obvious  intention  of  the  transaction,  the  conse- 
quence was  supposed  to  follow  from  the  nature  of  the  use.  Here 
then  was  a  case  for  the  intei-ference  of  the  Chancellor.  It 
appears  that  by  the  time  of  Sir  E.  Coke,  the  uses  upon  uses 
which  the  common  law  courts  refused  to  recognise  were  en- 
forced in  Chancery  ^  Thus  the  distinction  between  the  equit- 
able and  the  legal  estate,  which  it  had  been  the  design  of  the 
Statute  of  Uses  to  abolish,  was  restored. 

These  second  uses  are  henceforth  known  under  the  name  of 
trusts.  If  lands  are  conveyed  to  A  and  his  heirs,  to  the  use 
of  B  and  his  heirs,  in  trust  for  C  and  his  heirs,  B  has  the  leeral 
estate  by  force  of  the  Statute  of  Uses.  C's  interest  is  wholly 
created  and  protected  by  the  Court  of  Chancery. 

So  if  lands  are  conveyed  to  A  and  his  heirs  to  such  uses  as 
he  shall  appoint ;  and  he  appoints  to  B  and  his  heirs  to  the  use 
of  C  and  his  heirs,  the  legal  estate  is  vested  in  B,  and  C's  interest 
is  equitable  only.  For  all  practical  purposes  G  is  the  owner  of 
the  estate.  He  can  call  upon  B  to  convey  to  him  or  his  nominee; 
he  can  himself  part  with  his  interest  to  another  person,  for  whom 
B  will,  upon  notice  given  to  him,  be  a  trustee ;  Cs  estate  will 
descend  to  his  heir  according  to  the  rules  of  law.  The  husband 
of  cestui  que  trust  has  an  estate  by  the  curtesy,  and  the  Avidow 
(since  3  and  4  Will.  IV,  c.  105)  is  entitled  to  dower. 

Such  is  the  origin  of  modern  Trusts  under  which  so  large  a 
portion  of  the  land  of  the  country  is  held.  The  reader  must 
accustom  himself  to  the  use  and  meaning  of  these  technical  terms. 
The  legal  estate  is  vested  in  the  trustee,  in  trust  for  the  cestui  que 
trust,  who  has  the  equitable  estate.    Whenever  the  rules  of  law  are 

*  See  Foorde  v.  Hoskins  in  12  James  I  {1  Bulstrode,  p.  337),  in  the  course 
of  which  case  Coke  says,  'If  cestui  que  use  desires  the  feoffees  to  make 
an  estate  over,  and  they  so  to  do  refuse,  for  this  refusal  an  action  upon  the 
case  lieth  not,  because  for  this  he  hath  his  proper  remedy  by  a  subpoena  in 
the  Chancery.'     It  seems  that  this  could  only  apply  to  a  use  upon  a  use. 


294  Equitable  JEstaies.  [chap.  vii. 

applicable,  trusts  or  equitable  estates  or  interests  follow  those 
rules.  Thus  an  equitable  estate  may  be  created  in  fee,  in  tail, 
for  life,  or  for  years ;  an  equitable  estate  tail  may  be  barred  in  the 
same  way  as  a  legal  estate  tail ;  it  will  descend  ah  intestato  accord- 
ing to  the  rules  regulating  legal  estates ;  future  estates  in  re- 
mainder and  executory  interests  can  be  created  in  the  same  way, 
and  subject  to  the  rule  against  perpetuity^;  the  husband  of 
cestui  que  trust  is  entitled  to  an  estate  by  the  curtesy,  and  the 
widow  (since  3  and  4  Will.  IV,  c.  105)  to  dower. 

Besides  the  creation  of  trusts  of  lands  expressly  by  a  declara- 
tion of  the  intent  of  the  gi-autor,  which,  though  complete  in 
itself,  is  insufficient  to  convey  the  legal  estate,  there  is  also  a 
large  class  of  what  are  called  implied  trusts.  This  is  too  large 
a  subject  to  be  discussed  here,  and  it  must  be  sufficient  to  say 
that  wherever,  according  to  the  principles  on  which  the  Court 
of  Chancery  acts,  it  would  be  inequitable  from  circumstances  of 
fraud,  mistake,  or  otherwise,  for  the  legal  owner  of  the  land  to 
be  also  the  beneficial  owner,  the  Court  of  Chancery  will  hold  the 
legal  owner  to  be  a  trustee  for  the  person  who  is  in  equity  en- 
titled to  the  lands.  Thus  if  a  person  has  agreed  to  buy  land, 
and  has  paid  the  purchase  money  without  receiving  a  formal 
conveyance,  the  legal  owner  will  be  held  to  be  a  trustee  for  him. 

The  creation  or  assignment  of  trust  estates  must  by  the  pro- 
visions of  the  Statute  of  Frauds  ^  be  evidenced  by  writing,  but  no 
other  solemnity  is  necessary.  This  provision  however  does  not 
apply  to  implied  or  resulting  trusts  ^.  The  same  statute  rendered 
trust  estates  in  effect  liable  for  the  debts  of  cestui  que  trust  *  in 

'  It  should  be  observed  that  the  rule  that  the  freehold  could  not  be  in 
abeyance  was  not  applicable  to  trust  estates.  There  is  therefore  nothing 
to  prevent  a  contingent  equitable  remainder  being  limited  so  as  to  take 
effect  after  a  particular  estate  for  years  (see  above,  p.  193),  nor  was  such  a 
contingent  remainder  liable  to  be  destroyed  before  the  statute  8  and  9  Vic. 
0.  106,  by  the  forfeiture,  surrender,  or  merger  of  the  particular  estate.  (See 
Williams  on  Real  Property,  p.  276  ;  Fearne,  p.  284  ;  and  above,  p.  194-) 

*  29  Car.  II.  c.  3.  ss.  7,  9. 
3  Sect.  8. 

*  Sect.  lo.     See  WiUiams  on  Real  Property,  p.  165;  and  above,  p.  209. 


§  4-]  Ti/rrelVs  Case.  295 

the  hands  of  his  heir  to  the  same  extent  as  the  legal  interest, 
and  subsequent  statutes  have  placed  the  equitable  interest  on 
the  same  footing  as  the  legal  in  this  resiDect. 

Amongst  the  most  important  consequences  of  the  introduc- 
tion of  this  class  of  interests  were  the  facilities  thereby  afforded 
for  providing  for  married  women.  By  law  a  married  woman 
has,  as  the  fiction  goes,  during  coverture  no  separate  existence 
apart  from  her  husband.  During  her  life  therefore  her  lands 
become  her  husband's,  though  they  revert  to  her  or  her  heir 
after  his  or  her  death.  But  there  is  nothing  to  prevent  the 
lands  being  conveyed  to  a  trustee  in  trust  for  a  married  woman. 
The  trustee  in  such  a  case  would  be  bound  to  receive  the  rents 
and  pay  them  to  her,  so  that  the  lands  would  be  free  from  the 
control  of  her  husband.  The  Court  of  Chancery  even  went  the 
length,  in  order  effectually  to  protect  the  woman  from  losing  her 
property,  of  allowing  the  validity  in  this  case  of  a  clause  in  the 
settlement  restraining  the  power  of  the  Avoman  during  the 
coverture  to  alienate  her  interest  in  the  lands— an  exception  to 
the  general  rule  of  law  ^. 

Such  are  the  main  features  of  this  large  and  important  branch 
of  the  law  of  real  property.  To  go  further  into  detail  is  beyond 
the  scope  of  the  present  treatise. 


Tyrrell's  Case.    Michaelmas  Term,  4  and  5  Philip  and  Mary. 
In  the  Court  of  Wards.     (Dyer's  Reports,  155  a.) 

Jane  Tyrrell,  widow,  for  the  sum  of  four  hundred  pounds  paid 
by  Gr.  TjTrell  her  son  and  heir  apparent,  by  indenture  enrolled 
in  Chancery  in  the  4th  year  of  Edward  VI,  bargained,  sold,  gave, 
granted,  covenanted,  and  concluded  to  the  said  G.  Tyrrell  all  hei' 
manors,  lands,  tenements  &c.,  to  have  and  to  hold  the  said  &c. 
to  the  said  G.  T.  and  his  heirs  for  ever  2,  to  the  use  of  the  said 


!r 


*  See  Haynes,  Outlinos  of  Equity,  p.  211.  The  clause  restraining  antici- 
pation, as  it  is  called,  was  first  inserted  at  the  suggestion  of  Lord  Thurlow 
in  a  settlement  of  which  he  was  trustee. 

*  This  conveyance  would  take  effect  by  way  of  use  under  the  statute,  and 
thus  a  legal  estate  in  fee  simple  would  be  given  to  G.  T. 


2g6  HquHaUe  Estates.  [chap.  wi. 

Jane  during  her  life  without  impeachment  of  waste ;  and  imme- 
diately after  her  decease  to  the  use  of  the  said  G.  T.  and  the 
heirs  of  his  body  lawfully  begotten ;  and  in  default  of  such  issue, 
to  the  use  of  the  heirs  of  the  said  Jane  for  ever.  Quaere  well 
whether  the  limitation  of  those  uses  upon  the  habendum^  are 
not  void  and  impertinent,  because  an  use  cannot  be  springing, 
drawn,  or  reserved  out  of  an  use,  as  appears  j^rima  facie  ?  And 
here  it  ought  to  be  first  an  use  transferred  to  the  vendee  before 
that  any  freehold  or  inheritance  in  the  land  can  be  vested  in 
him  by  the  ini-ollment,  &c.  And  this  case  has  been  doubted  in 
the  Common  Pleas  before  now ;  ideo  quaere  legem.  But  all  the 
Judges  of  C.  B.  and  Saundees,  Chief  Justice,  thought  that  the 
limitation  of  uses  above  is  void,  &c. ;  for  suppose  the  Statute  of 
InroUments  (cap.  i6)  had  never  been  made,  but  only  the  Statute 
of  Uses  (cap.  lo)  in  27  Henry  VIII,  then  the  case  above  could 
not  be,  because  an  use  cannot  be  engendered  of  an  use. 


GiRLAND  v.  Sharp.     37  Elizabeth.     (Croke'3  Reports,  Eliz. 

p.  382.) 

Trespass  ^.  Upon  demun-er  ^  the  case  was  that  one  infeoffed 
his  two  sons  to  the  use  of  himself  for  life,  and  after  to  the  use, 
of  them  and  their  heirs,  ad  ultimam  voluntatem  suam  perim- 
plendam  ;  and  afterwards  devised  it  to  Sharp,  the  defendant,  in 
fee ;  and  whether  Sharp  hereby  shall  have  the  land  or  not  was 
the  question.  Gaiudy  conceived  that  he  should  not;  for  an  use 
cannot  be  limited  upon  an  use;  then  when  he  limits  it  to  the 
use  of  his  two  sons  and  their  heirs,  he  cannot  afterwards  limit 
it  to  the  uses  of  his  last  will.  But  the  words  ad  performandum 
ultimam  voluntatem,  as  to  limit  any  uses  thereby,  are  void  words. 
And  to  that  opinion  Clench  agreed,  but  Fenner  doubted  thereof. 
Wherefore  it  was  adjourned. 

^  The  habendum  is  the  part  of  the  deed  which  designates  the  estate  for 
which  the  grantee  is  to  hold,  '  to  have  and  to  hold,'  etc. 

*  The  action  was  for  breaking  and  entering  the  plaintiff's  land. 

^  That  is,  the  facts  as  stated  upon  the  record  or  pleadings  are  admitted 
to  be  true,  and  the  question  is  what  is  the  legal  result  of  the  admitted 
facts. 


§  4-]  Nevill  V.  Saunders.  297 


Nevill  v.  Saunders.     Mich.  1686.     (i  Vernon's  Reports, 

415-) 

Lands  were  given  by  will  to  trustees  and  their  lieirs  in  trust 
for  Anne  the  defendant's  wife  and  her  heirs,  and  that  the  trustees 
should  from  time  to  time  pay  and  dispose  of  the  rents  and  pro- 
fits to  the  said  Anne  or  to  such  person  or  persons  as  she  by  any 
writing  under  her  hand  as  well  during  coverture  as  being  sole, 
should  order  or  appoint  the  same,  without  the  intermeddling 
of  her  husband,  whom  he  willed  should  have  no  benefit  or  dis- 
posal thereof;  and  as  to  the  inheritance  of  the  premises  in  trust 
for  such  person  or  persons  and  for  such  estate  or  estates  as  the 
said  Anne  by  any  writing  purporting  to  be  her  will,  or  other 
writing  under  her  hand,  should  appoint;  and  for  want  of  such 
appointment  in  trust  for  her  and  her  heirs.  The  question  was 
whether  this  was  an  use  executed  by  the  statute,  or  a  bare  trust 
for  the  wife,  and  the  Court  held  it  to  be  a  trust  only,  and  not 
an  use  executed  by  the  statute. 


[chap. 


CHAPTER  VIII. 

HISTORY  OF  THE  LAW  OF  WILLS  OF  LAND. 

It  has  been  seen  that  one  of  the  most  marked  effects  of  the 
growth  of  feudalism  was  the  abolition,  except  in  certain  locali- 
ties, of  the  practice  of  devising  interests  in  lands  by  wilP. 
Such  a  disposition  would  have  defeated  the  most  valuable 
rights  of  the  lord,  his  claim  to  reliefs,  wardship,  and  marriage. 
It  was  therefore  wholly  inconsistent  with  feudal  theories.  In 
a  great  many  boroughs,  and  in  gavelkind  lands,  local  customs 
were  sufficiently  strong  to  pi-eserve  the  ancient  liberty  of  dis- 
position by  will,  and  cases  relating  to  '  bm-gages  devisable '  are 
common  in  the  Year  Books. 

It  has  also  been  seen  how  the  practice  of  disposing  of  usea 
of  land  by  will  became  prevalent  under  the  protection  and 
encouragement  of  the  Chancellors.  One  of  the  earliest  of  the 
recorded  cases  on  this  branch  of  the  law  contains  a  disposition 
by  will,  or  rather  perhaps  settlement,  of  the  use  of  lands  made 
in  the  6th  year  of  Richard  II  ^.  Except  therefore  in  the  case 
of  burgages  devisable,  a  devise,  before  the  legislation  presently 
to  be  noticed,  was  simply  a  declaration  by  the  legal  tenant  of 
the  uses  to  which  his  heir  at  his  death  should  hold  the  lands, 
or  of  the  uses  to  which  he  had  conveyed  the  lands  to  feoffees 
(such  conveyance  having  been  expressed  to  be  to  the  use  of  his 
will),  or  else  a  disposition  of  a  use  which  had  already  been 
created  in  favour  of  himself. 

In  order  therefore  that  the  devisee  of  the  use  might  enforce 

*  See  above,  pp.  21,  39. 

'^  Rothanhale  v.  Wychingliam,  above,  p.  249,  n.  2. 


VIII.]       Restoratmi  of  Power  of  Devising  Lands.  299 

the  disposition  of  the  will,  the  aid  of  the  Chancellor  was  called 
in.  The  Chancellor  would  compel,  if  necessary,  the  tenant  of 
the  legal  estate  to  convey  the  land  devised  to  cestui  que  use,  the 
devisee. 

It  appears  from  the  title  and  preamble  of  the  Statute  of  Uses 
that  one  of  its  principal  objects  was  to  abolish  the  power  of 
disposing  of  interests  in  lands  by  will,  and  thereby  to  restore 
to  the  king  and  the  gi'cat  lords  the  feudal  dues  which  they 
could  not  claim  if  the  estate  of  the  heir  w^ere  defeated  by  a 
devise. 

The  Statute  of  Uses  contained  a  saving  in  favour  of  wills 
made  before  the  first  day  of  May,  1536  ^,  the  year  following  that 
of  the  passing  of  the  Statute.  Between  that  time  and  July  20, 
1540,  the  power  of  testation  was,  as  regards  freehold  interests 
in  lands,  wholly  abolished,  except  in  the  localities  mentioned 
above.  It  may  however  be  well  believed  that  it  was  im- 
possible for  the  legislature,  arbitrary  and  thorough-going  as 
it  was,  to  maintain  a  restriction  so  opposed  to  the  habits 
and  practices  which  had  prevailed  throughout  the  country  ever 
since  Uses  had  been  understood  and  protected  by  the  Chan- 
cellor. Accordingly  in  the  32nd  year  of  Henry  VIII  (1540), 
it  was  found  necessary  to  restore  a  large  measure  of  the  power 
of  devising  interests  in  lands.  The  provisions  of  the  Statute 
32  Henry  VIII,  c.  2,  are  somewhat  complicated;  but  the  up- 
shot of  them  is  that  power  is  given  to  every  tenant  in  fee 
simple  ^  to  dispose  of  all  his  lands  held  by  socage  tenure,  and  of 
two  thirds  of  his  lands  held  by  knight-service.  Careful  provision 
is  made  by  this  Statute  for  the  saving  of  primer  seisins,  reliefs, 
and  fines  on  alienation,  in  the  case  of  socage  lands,  and  of  the 
rights  of  wardship  over  the  third  part  of  knight-service  lands, 
in  favour  of  the  king  or  other  lord. 

When  by  the  Act  for  the  abolition  of  militaiy  tenures  ^  tenure 
by  knight-service  was  converted  into  free  and  common  socage, 

1  Sect.  9. 

^  So  interpreted  by  34  and  35  Henry  VIII.  cap.  v.  sect.  3. 

3  See  Chap.  IX. 


300  History  of  Wills  of  Land.  [chap. 

the  power  of  devise  granted  by  the  Statutes  of  Henry  VIII  ex- 
tended to  the  whole  of  the  lands  of  which  previously  only  two 
parts  had  been  devisable. 

No  particular  solemnity  was  required  by  the  Statutes  of 
Henry  VIII  for  the  execution  of  wills.  The  first  Statute  spoke 
of  a  will  or  testament  in  writing  or  other  act  lawfully  executed 
in  the  testator's  life.  Consequently  'bare  notes  in  the  hand- 
writing of  another  person  were  allowed  to  be  good  wills  within 
the  Statute  ^.'  The  law  was  altered  by  the  Statute  of  Frauds 
(29  Car.  II,  c.  3),  by  which  it  was  made  a  necessary  condition 
of  the  validity  of  a  will  of  lands  that  it  should  be  signed  by 
the  testator,  or  by  some  other  person  in  his  presence,  and  be 
subscribed  by  three  or  four  credible  witnesses. 

The  law  of  wills  of  all  property,  whether  real  or  personal, 
now  rests  on  the  provisions  of  the  "Wills  Act,  7  "Will.  IV  and 
I  Vict.  c.  26.  This  Statute  repealed  the  previous  Statutes, 
except  so  far  as  regards  their  operation  upon  all  wills  made 
before  January  i,  1838.  The  principal  requirements  of  the 
Wills  Act  with  regard  to  the  form  of  wills  ^  are,  that  the  will 
be  in  writing,  signed  at  its  foot  or  end  ^  by  the  testator,  or  by 
some  other  person  in  his  presence  and  by  his  direction ;  such 
signature  to  be  made  or  acknowledged  by  the  testator  in  the 
presence  of  two  or  more  witnesses  present  at  the  same  time, 
who  are  to  attest  and  subscribe  the  will  in  the  testator's 
presence. 

The  provisions  of  the  Statute  of  Frauds  above  noticed  intro- 
duced some  harsh  doctrines  as  to  the  rules  affecting  the  neces- 
sary witnesses  of  a  will.  Formerly  the  notion  prevailed  that 
a  witness  who  had  any  interest  in  the  subject-matter  of  his  testi- 
mony was  therefore  not  a  credible  witness  at  all.  Hence  if  the 
will  was  attested  by  only  three  witnesses,  and  contained  a  legacy 
or  other  provision  in  favour  of  one  of  the  witnesses,  his  testimony 
would  be  excluded,  and  the  will  was  rendered  invalid  for  want  of 


'  Blackstone,  ii.  p.  376.  *  Sect.  9. 

^  Further  explained  and  defined  by  15  and  16  Vict.  c.  24. 


VIII.]  Ojperation  of  a   Will.  301 

the  testimony  of  three  credible  witnesses.  To  such  a  length  was  the 
doctrine  cax-ried,  that  if  one  of  the  witnesses  was  a  creditor,  or  even 
husband  or  wife  of  a  creditor,  and  the  will  contained  a  provision 
charging  the  testator's  estates  with  the  payment  of  his  debts,  the 
rule  applied  equally,  the  evidence  of  the  witness  was  inadmissible, 
and  the  whole  will  consequently  invalid.  The  harshness  of  this 
doctrine  was  to  some  extent  modified  by  the  Statute  25  George 
II,  c.  6,  by  which  gifts  to  witnesses  were  made  void,  thus 
destroying  their  interest,  and  creditors  were  made  competent 
witnesses.  By  the  Wills  Act,  7  Will.  IV  and  i  Vict.  c.  26, 
section  14,  it  was  provided  that  a  will  should  not  be  void  by 
reason  of  the  incompetency  of  the  attesting  witness ;  and  the 
provisions  of  the  Act  25  George  II,  c.  6,  as  to  avoiding  gifts 
to  attesting  witnesses,  were  re-enacted.  These  provisions  were 
to  some  extent  an  anticipation  of  the  general  application  of  the 
principle  which,  mainly  owing  to  the  demonstrations  of  Bentham, 
was  being  gradually  introduced  into  the  various  departments  of 
the  law  of  evidence,  that  the  fact  of  a  witness  having  an  interest 
is  an  objection  only  to  the  weigJit  and  not  to  the  admissibility 
of  his  evidence  \ 

The  operation  of  a  will  as  a  mode  of  acquiring  rights  over 
land  is  peculiar,  and  derives  from  its  history  attributes  wholly 
difierent  to  those  which  characterise  a  will  of  personal  or  move- 
able property.  A  will  of  personalty  inherits  to  some  extent 
the  Roman  conception  of  a  successio  joer  universitatem.  It  con- 
fers on  the  executor  the  whole  of  the  testator's  rights  in  respect 
of  his  personal  property,  and  the  greater  portion  of  his  duties. 
The  executor  is  the  universal  successor  of  the  testator.  To  use 
the  language  of  Roman  law,  he  is  invested  with  the  legal 
character,  jjersona  or  status,  of  his  testator,  so  far  as  regards  his 
personal  property. 

On  the  other  hand,  the  earliest  definite  juristic  conception 
which  was  formed  of  an  English  will  of  lands  seems  to  have 
been,  as  has  already  been  said,  that  it  operated  as  a  declaration 

'  See  6  and  7  Vict.  c.  85,  and  14  and  15  Vict.  c.  99. 


303  History  of  Wills  of  Land.  [chap. 

of  the  testator's  intention  as  to  the  use  or  beneficial  interest  in 
lands — as,  in  fact,  a  conveyance  of  the  particular  beneficial  in- 
terest intended  to  be  dealt  with.  Thus  a  will  of  lands  has 
always  been  regarded  as  a  conveyance  of  a  particular  interest, 
coming  into  operation  immediately  upon  the  death  of  the 
testator,  and  not  as  creating  a  succession  in  the  sense  of  Koman 

law. 

It  followed  from  the  original  conception  of  a  will  as  a  mode 
of  raisino-  a  use,  that  a  will,  like  any  other  mode  of  raising  uses, 
might  create  interests  arising  at  a  future  time,  and  divesting 
previous  interests  in  a  way  unknown  to  the  common  law.  These 
qualities  seem  to  have  been  imparted  even  to  a  devise  of  lands, 
which,  by  virtue  of  a  local  custom,  was  operative  at  common 
law ;  and  the  common  lawyers  marvelled  when  they  reflected  on 
the  wonderful  nature  of  a  devise,  in  a  case,  for  instance,  of  a 
burgage  devisable  which  the  will  declared  should  be  sold  by  the 
executors,  how  it  could  be  that  upon  the  testator's  death  the 
heir  should,  according  to  the  course  of  the  common  law,  be  in 
by  descent,  and  yet,  upon  the  sale  by  the  executors  who  had  no 
other  estate  or  interest  in  the  lands  beyond  this  mere  power, 
be  deprived  of  his  inheritance  ^ 

Thus  at  the  time  of  the  passing  of  the  Statute  of  Uses  the 
conception  of  a  will  of  lands  was  that  it  operated  as  a  declara- 
tion of  uses,  taking  effect  at  or  after  the  testator's  death,  and 
being  subject  to  the  same  rules  as  regulated  the  creation  of  uses 
by  transactions  operating  inter  vivos. 

^  Year  Book,  9  Hen.  VI.  24  b.  Bdbington :  '  La  nature  de  devis,  ou 
terras  sent  devisables,  est,  que  on  peut  deviser  que  la  terre  sera  vendu  par 
executors,  et  ceo  est  bon,  come  est  dit  adevant,  et  est  marvellous  ley  de 
raison  :  mes  ceo  est  le  nature  d'un  devis,  et  devise  ad  este  use  tout  temps 
eu  tiel  forme  ;  et  issint  on  aura  loyabnent  franktenement  de  cesty  qui 
n'avoit  rien,  et  en  meme  le  maniere  come  on  aura  fire  from  flint,  et  uncore 
nul  fire  est  deins  le  flint ;    et  ceo  est  pour  performer  le  darrein  volonte 

de  le  devisor.' Paston :  '  Une  devis  est  marvellous  en  luy  meme 

quand  il  peut  prendre  effect :  car  si  on  devise  en  Londres  que  ses  executors 
vendront  ees  terres,  et  devie  seisi ;  son  heir  est  eins  par  descent,  et  uncore 
par  le  vend  des  executors  il  sera  ouste.'  Williams  on  Real  Property,  p. 
302. 


VIII,]  Belation  of  Uses  and  Wills.  303 

These  characteristics  continued  to  attach  to  wills  when,  by 
the  legislation  of  Henry  VIII,  they  became  recognised  as  a  mode 
of  disposing  of  the  legal  interest  in  lands. 

Just  as,  before  the  Statutes  of  Henry  VIII,  a  will  of  lands 
had  been  regarded  as  a  declaration  of  a  use,  coming  into  effect 
upon  the  testator's  death,  but  speaking  as  from  its  date  and 
dealing  only  with  the  interest  then  intended  to  be  conveyed  ; 
so,  after  those  Statutes,  a  will  of  land  operated  as  a  conveyance, 
dealing  with  the  legal  interest  possessed  by  the  testator  at  the 
date  of  the  will,  and  intended  to  be  disposed  of,  but  coming 
into  effect  only  at  his  death,  and  being  of  course  subject  to 
revocation  at  any  time  before  his  death. 

So  too,  as  there  was  no  difference  in  the  power  of  creating 
interests  in  futuro  by  way  of  use,  whether  the  uses  were  de- 
clared by  will  or  raised  inter  vivos,  when  the  power  of  disposing 
of  the  legal  estate  was  created  by  Statute,  a  testator  might, 
without  availing  himself  of  the  Statute  of  Uses,  create  future  or 
executory  interests  by  his  will,  Avithout  being  bound  by  the 
strict  rules  of  the  common  law  limiting  the  power  of  creating 
future  estates.  For  instance,  a  devise  to  A  in  fee,  but  if  he 
should  not  live  to  attain  the  age  of  twenty-one  then  to  B  in  fee, 
or  ten  years  after  the  testatoi-'s  death  to  C  in  fee,  would  be  good 
and  effectuaP.  These  executory  devises,  as  they  are  called,  are 
subject  to  exactly  the  same  rules  with  regard  to  the  modes  in 
which  they  can  be  created,  the  rule  against  perpetuity,  and 
their  liability  to  be  construed  if  possible  as  contingent  remain- 
ders, as  those  which  govern  springing  and  shifting  uses,  and 
which  have  been  explained  in  the  last  chapter^. 

It  was  at  one  time  doubted  whether  the  Statute  of  Uses  had 
any  appUcation  to  wills  ^.  For  instance,  it  was  a  question,  if 
lands  were  devised  to  B  and  his  heirs  to  the  use  of  C  for  life, 
whether  Cs  life-estate  was  executed  by  force   of  the  Statute 

*  See,  for  the  effect  of  similar  dispositions  inier  vivos  at  common  law, 
above,  Chap.  V.  §  3  (2). 

2  See  Appendix  to  Part  I,  Table  III. 
^  See  2  Jarman  on  Wills,  p.  268. 


304  History  of  Wills  of  Land.  [chap. 

of  Uses,  or  whetlier  it  derived  its  efficacy  simply  from  the  in- 
teution  of  the  testator  to  create  interests  as  if  by  the  operation 
of  that  Statute.  It  has  however  long  been  settled  that  a  devise 
to  uses  operates  under  the  Statute  in  the  same  way  and  subject 
to  the  same  rules  as  a  conveyance  to  uses.  Whether  this  is  by 
reason  of  the  force  of  the  Statute  of  Uses,  or  by  reason  of  the 
intention  of  the  testator  to  dispose  of  the  lands  as  if  the  Statute 
of  Uses  really  operated,  is  a  question  of  some  metaphysical 
nicety,  but  of  no  practical  importance. 

The  rules  as  to  the  construction  of  wills  form  one  of  the  most 
intricate  and  least  satisfactory  portions  of  the  modern  law  of 
real  property.  The  subject  is  far  too  complex  to  be  discussed 
at  length  in  a  treatise  like  the  present.  Starting  with  the 
general  pi'inciple  that  the  object  is  to  ascertain  the  intention 
of  the  testator  to  be  gathered  from  the  whole  will,  and  having 
regard  to  the  fact  that  wills,  far  more  frequently  than  formal 
deeds  operating  inter  vivos,  are  often  the  composition  of  persons 
who  have  no  legal  knowledge,  and  sometimes  little  or  no  educa- 
tion, the  Courts  of  Law  and  Equity  have  never  applied  the 
same  strict  and  technical  rules  of  construction  to  the  language 
of  wills  as  has  been  the  case  in  regard  to  deeds.  Thus,  for 
instance,  expressions  in  a  will  are  held  to  be  sufficient  to  create 
an  estate  in  fee  or  in  tail  which  would  be  insufficient  in  a  deed  \ 
However,  in  applying  the  general  principle,  a  vast  number  of 
subordinate  rules  have  grown  up,  which  have  frequently  in  par- 
ticular cases  had  the  effect  of  defeating  instead  of  furthering  the 
intention  of  the  testator. 

For  instance,  in  a  will  a  devise  to  A  and  his  issue  is  held,  in 
accordance  with  the  general  principle,  to  be  sufficient  to  give  to 
A  an  estate  tail.  These  words  would  not  be  sufficient  for  the 
purpose  in  a  deed  ;  there  distinct  words  both  of  procreation  and 
of  inheritance  are  necessary.  Following  out  the  application  of 
the  general  rule,  it  was  held  that  a  devise  to  A  for  life,  and  '  in 
case  he  die  without  issue  to  B,'  gives  by  implication  an  estate  tail 

*  See  instances  in  Blackstone,  ii.  381. 


VIII,]  Construction  of  Wills.  305 

to  A  ^  The  qualities  of  an  estate  tail  therefore  at  once  attached 
to  such  a  gift  by  will,  and  A  might  at  once  convert  his  estate 
into  a  fee  simple  and  so  bar  B's  remainder,  and  all  other  in- 
terests subsequent  to  his  own.  So  common  was  this  mistake, 
and  so  gi-ievous  the  injustice  wrought  by  this  constructiou,  that 
it  was  provided  by  the  Wills  Act  that  the  words  '  if  A  shall 
die  without  issue '  and  like  expressions  should  be  construed  to 
apply  to  the  event  of  A''s  death  without  leaving  issue  living 
at  his  decease,  and  that  such  words  should  not,  taken  alone,  be 
sufficient  to  create  an  estate  tail  ^. 

One  of  the  commonest  errors  in  a  will  made  by  ignorant  per- 
sons was  to  give  an  estate  in  lands  to  a  person  without  adding 
words  of  inheritance  or  any  expression  to  show  that  it  was 
intended  that  the  devisee  should  take  more  than  a  life  estate. 
Though  the  courts  eagerly  seized  on  any  expressions  evidencing 
this  intention,  and  permitted  estates  in  fee  to  be  created  by 
words  which  would  have  been  totally  insufficient  in  a  deed,  it 
remained  an  inflexible  rule  that  if  lands  were  given  to  A  simply, 
without  the  addition  of  any  words  from  which  an  intention  to 
give  the  fee  could  be  gathered,  A  would  take  only  a  life  estate  ^. 
The  Wills  Act  provided  that  such  a  gift  should  bear  the  con- 
sti'uction  which  every  person  uninstructed  in  the  law  would 
naturally  have  placed  upon  it,  and  words  of  inheritance  are  no 
longer  in  a  will  necessary  to  pass  the  fee  simple  *. 

Other  important  alterations  were  eflfected  in  the  operation  and 
construction  of  wills  by  the  same  Act.  The  most  important 
of  these  were  the  following.  It  has  been  seen  that  the  original 
conception  of  a  will  of  lands  was  that  it  operated  as  a  present 

^  This  follows  from  the  principle  laid  down  in  Shelley's  case  (see 
above,  p.  195).  These  words  were  held  not  to  mean  that  the  land  was  to 
go  to  B  in  case  of  A's  death  without  leaving  issue  living  at  his  decease,  but 
to  imply  a  gift  to  A  and  his  issue  with  remainder  to  B  in  the  event  of  the 
failure  oi  A's  issue,  whether  such  failure  took  place  in  A's  lifetime  or  after 
his  decease.     Such  a  gift  therefore  implied  an  estate  tail  vested  in  A. 

2  7  Will.  IV  and  i  Vict.  c.  26.  s.  29. 

^  The  rule  is  laid  down  in  the  Year  Book,  22  Ed.  Ill,  16,  no.  59. 

*  7  Will.  IV  aud  1  Vict.  c.  26.  s.  2S. 

X 


3o6  History  of  Wills  of  Land.  [chap, 

conveyance  to  take  effect  at  a  future  time  ^.  It  followed  that 
if  a  man  devised  all  bis  lands,  the  will  applied  only  to  those 
lands  which  were  his  at  the  date  of  the  will,  and  did  not  affect 
after-purchased  lands.  This  would  be  the  case  even  if  he  sold 
and  re-purchased  lands  which  be  owned  at  the  date  of  the  will "-. 
By  the  Wills  Act  it  is  now  provided  ^,  that  every  will  shall  be 
construed  with  refei'cnce  to  the  property  comprised  in  it  'to 
speak  and  take  effect  as  if  it  had  been  executed  immediately, 
before  the  death  of  the  testator,  unless  a  contrary  intention 
shall  appear  by  the  will.'  As  the  law  at  present  stands,  there- 
fore, a  devise  of  '  all  my  lands '  will  convey  to  the  devisee  not 
only  all  the  lands  which  the  testator  has  at  the  time  of  the  will, 
but  all  which  he  may  have  acquired  subsequently  and  retains  at 
the  time  of  his  death.  A  corollary  to  this  rule  is,  that  in  the 
event  of  the  death  of  any  person  to  whom  lands  have  been 
specifically  devised,  in  the  lifetime  of  the  testator,  if  the  will 
contains  a  devise  of  the  residue  of  the  lands  to  any  other  per- 
son, such  person  shall  take  as  part  of  the  residue  the  lands  so 
specifically  devised,  which  would  otherwise  have  lapsed,  and 
gone  to  the  heir  at  law  *. 

As  a  general  rule,  if  a  devisee  dies  in  the  lifetime  of  the  tes- 
tator, though  the  devise  may  have  been  expressed  to  be  made 
to  him  and  his  heirs,  or  to  him  and  the  heirs  of  his  body,  the 
devise  lapses,  or  fails  to  take  effect.  This  rule  is  altered  by  the 
Wills  Act  in  two  cases.  Where  there  is  a  devise  creating  an 
estate  tail,  for  example  to  A  and  the  heirs  of  his  body,  and  the 
devisee  in  tail  dies,  leaving  issue  surviving  the  testator,  who 
would  have  been  entitled  under  the  entail  had  their  ancestor 
survived,  the  devise  is  not  to  lapse,  but  to  take  effect  as  if 
the  ancestor  had  died  immediately  after  the  testator  ^.  Further, 
if  a  devise  of  an  estate  of  inheritance  be  made  in  favour  of  a 


^  See  above,  p.  302. 

^  See  for  an  early  instance  of  this,  Year  Book,  44  Edward  III,  p.  33. 

3  7  Will.  IV  and\i  Vict.  c.  26.  s.  24. 

*  lb.  sect.  26. 

*  lb.  sect.  32. 


VIII.]  Liability  of  Devisee.  307 

child  or  other  issue  of  the  testator  who  dies  in  the  testator's 
lifetime  leaving  issue,  the  devise  is  not  to  lapse,  but  such  issue 
is  to  take  the  benefit  of  the  devise  according  to  the  ordinary 
rules  of  descent  \ 

Again,  under  the  older  law  a  devise  to  a  man's  heir  at  law, 
ffivins:  him  no  estate  different  from  that  which  he  would  have 
taken  by  descent,  was  inoperative;  in  other  words,  the  title  of 
the  heir  at  law  rested  on  descent  and  not  on  the  will,  no  doubt 
because  otherwise  the  lord  would  have  lost  his  relief,  wardship, 
and  marriage.  This  rule  was  reversed  by  the  Act  to  amend 
the  Law  of  Inheritance  ^. 

Amongst  other  consequences  of  treating  a  will  of  lands  as  a 
conveyance  to  the  devisee  of  the  jsarticular  lands  comprised  in 
and  dealt  with  by  the  will,  one  of  the  most  important  was  that 
no  liability  attached  to  the  lands  in  the  hands  of  the  devisee  for 
the  debts  of  the  devisor.  The  history  of  the  liability  of  the  heir 
for  the  debts  of  his  ancestor  has  been  already  noticed  ^.  By  the 
Statute  of  Fraudulent  Devises  *,  a  tenant  in  fee  was  prevented 
from  defeating  creditors,  who  held  securities  by  which  the  heirs 
were  bound,  by  devising  his  lands,  and  the  devisee  was  made 
liable,  equally  with  the  heir,  for  such  debts  ;  and  the  subse- 
quent legislation  noticed  above  ^,  providing  for  the  administra- 
tion of  the  real  as  well  as  personal  estate  of  deceased  debtors, 
applies  equally  to  the  devisee  and  the  heir. 

All  dispositions  by  will  are  revocable  and  subject  to  altera- 
tion by  the  testator  at  any  time  before  his  death.  The  pro- 
visions of  the  Wills  Act  respecting  the  mode  of  revocation  and 
alteration  are  given  below. 

>  7  Will.  IV  and  i  Vict.  c.  26.  s.  33. 
2  3  and  4  Will.  IV,  c.  106.  s.  3, 
^  See  above,  Chap.  V.  §  4. 

*  3  William  and  Mary,  c.  14,  repealed  and  as  to  this  matter  re-enacted 
by  II  Geo.  IV  and  I  Will.  IV,  c.  47. 
^  p.  209. 


X  2 


5o8  History  of  Wills  of  Land.  [chap. 


(i)  The  Act  of  Wills,  Wards,  and  Pkimer  Seisins,  whereby 
A  Man  may  devise  two  Parts  of  his  Land.  32  Henry 
VIII,  c.  I. 

Wliere  the  King's  most  royal  Majesty  in  all  the  time  of  his 
most  gracious  and  noble  reign  hath  ever  been  a  merciful,  loving, 
benevolent,  and  most  gracious  Sovereign  Lord,  unto  all  and 
singular  his  loving  and  obedient  subjects,  and  by  many  times 
past  hath  not  only  showed  and  imparted  to  them  generally  by 
his  many,  often,  and  beneficial  pai'dons  heretofore  by  authority 
of  his  parliament  granted,  but  also  by  divers  other  ways  and 
means,  many  great  and  ample  grants  and  benignities,  in  such 
wise  as  all  his  said  subjects  been  most  bounden  to  the  uttermost 
of  all  their  powers  and  graces  by  them  received  of  God  to 
render  and  give  unto  his  Majesty  their  most  humble  reverence 
and  obedient  thanks  and  services,  with  their  daily  and  con- 
tinual prayer  to  Almighty  God  for  the  continual  preservation 
of  his  most  royal  estate  in  most  kingly  honour  and  prosperity; 
yet  always  his  Majesty,  being  repleat  and  endowed  by  God  with 
grace,  goodness,  and  liberality,  most  tenderly  considering  that 
his  said  obedient  and  loving  subjects  cannot  use  or  exercise 
themselves  according  to  their  estates,  degrees,  faculties,  and 
qualities,  or  to  bear  themselves  in  such  Avise  as  that  they  may 
conveniently  keep  and  maintain  their  hospitalities  and  families, 
nor  the  good  education  and  bringing  up  of  their  lawful  genera- 
tions, which  in  this  realm  (laud  be  to  God)  is  in  all  parts  very 
great  and  abundant,  but  that  in  manner  of  necessity,  as  by 
daily  experience  is  manifested  and  known,  they  shall  not  be 
able  of  their  proper  goods,  chattels,  and  other  moveable  sub- 
stance to  discharge  their  debts,  and  after  their  degrees  set  forth 
and  advance  their  children  and  posterities  ;  Wherefore  our  said 
Sovereign  Lord  most  virtuously  considering  the  mortality  that 
is  to  every  person  at  God's  will  and  pleasure  most  common  and 
uncertain,  of  his  most  blessed  disposition  and  liberality,  being 
willing  to  relieve  and  help  his  said  subjects  in  their  said  neces- 
sities and  debility,  is  contented  and  pleased  that  it  be  ordained 
and  enacted  by  authority  of  this  present  Parliament  in  manner 
and  form  as  hereafter  followeth,  that  is  to  say,  That  all  and 
every  person  and  persons  having  or  wliich  hereafter  shall  have 
any  manors,  lands,  tenements,  or  hereditaments,  holden  in 
socage,  or  of  the  nature  of  socage  tenure,  and  not  having  any 
manors,  lands,  tenements,  or  hereditaments  holden  of  the  King 


VIII.]  3^  Henry  VIII.  c.  i.  309 

our  Sovereign  Lord  by  knight-service,  by  socage  tenure  in 
chief,  or  of  the  nature  of  socage  tenure  in  chief,  nor  of  any 
other  person  or  persons  by  knight-service,  from  the  twentieth 
clay  of  July  in  the  year  of  our  Lord  mdxl,  shall  have  full  and 
free  liberty,  power,  and  authority  to  give,  dispose,  will,  and 
devise,  as  well  by  his  last  will  and  testament  in  writing,  or 
otherwise  by  any  act  or  acts  lawfully  executed  in  his  life,  all  his 
said  manors,  lands,  tenements,  or  hereditaments,  or  any  of  them, 
at  his  free  will  and  pleasure ;  any  law,  statute,  or  other  tiling 
heretofore  had,  made,  or  used,  to  the  contrary  notwithstanding. 

(Section  2  gives  the  same  power  of  devising  the  whole  where 
a  person  holds  lands  of  the  King  in  socage  in  chief,  and  also 
holds  lands  of  other  persons  in  socage,  and  has  no  lands  holdeu 
by  knight-service.) 

3.  Saving  alway  and  reserving  to  the  King  our  Sovereign 
Lord,  his  heirs  and  successors,  all  his  right,  title  and  interest  of 
primer  seisin  and  reliefs,  and  also  all  other  rights  and  duties 
for  tenures  in  socage,  or  of  the  nature  of  socage  tenure  in 
chief,  as  heretofoi'e  hath  been  used  and  accustomed,  the  same 
manors,  lands,  tenements  or  hereditaments,  to  be  taken,  had, 
and  sued  out  of  and  from  the  hands  of  his  Highness,  his  heirs 
and  successors,  by  the  person  or  persons  to  whom  any  such 
manors,  lands,  tenements  or  hereditaments  shall  be  disposed, 
willed,  or  devised,  in  such  and  like  manner  and  form  as  hath 
been  used  by  any  heir  or  heirs  before  the  making  of  this  statute  ; 
and  saving  and  resei-ving  also  fines  for  alienations  of  such 
manors,  lands,  tenements,  or  hereditaments  holden  of  the  King 
our  Sovereign  Lord  in  socage,  or  of  the  nature  of  socage 
tenure  in  chief,  whereof  there  shall  be  any  alteration  of  freehold 
or  inheritance,  made  by  will  or  otherwise,  as  is  aforesaid. 

4.  And  it  is  further  enacted  by  the  authority  aforesaid,  that 
all  and  singular  person  and  persons  having  any  manors,  lands, 
tenements,  or  hereditaments  of  estate  of  inheritance  holden  of 
the  King's  Highness  in  chief  by  knight-service,  or  of  the  nature 
of  knight-service  in  chief,  from  the  said  twentieth  day  of  July, 
shall  have  full  power  and  authority  by  his  last  will,  by  writing 
or  otherwise,  by  any  act  or  acts  lawfully  executed  in  his  life,  to 
give,  dispose,  Avill  or  assign  two  parts  of  the  same  manors,  lands, 
tenements,  or  hereditaments  in  tln-ee  parts  to  be  divided,  or  else 
as, much  of  the  said  manors,  lands,  tenements  or  hereditaments 
as  shall  extend  or  amount  to  the  yearly  value  of  two  parts  of 
the  same  in  three  parts  to  be  divided,  in  certainty  and  by  special 


3IO  Hutory  of  Wills  of  Land.  [chap. 

divisions  as  it  may  be  known  in  severalty,  to  and  for  the  ad- 
vancement of  liis  Avife,  preferment  of  his  children,  and  payment 
of  his  debts  or  otherwise  at  his  will  and  pleasure  ;  any  law, 
statute,  custom  or  other  thing  to  the  contrary  thereof  notwith- 
standing. 

5.  Saving  and  reserving  to  the  King  our  Sovereign  Lord  the 
custody,  wardship  and  primer  seisin,  or  any  of  them  as  the  case 
shall  require,  of  as  much  of  the  same  manors,  lands,  tenements, 
or  hereditaments  as  shall  amount  and  extend  to  the  full  and 
clear  yearly  value  of  the  third  part  thereof  without  any  diminu- 
tion, dower,  fraud,  covin,  charge  or  abridgment  of  any  of  the 
same  third  part  or  of  the  full  profits  thereof. 

6.  (Saving  of  fines  for  alienation  ^) 

7-13.  (Further  provisions  extending  the  power  of  devising 
lands  in  all  cases  to  two-thirds  of  knight-service  lands,  and  to 
the  whole  of  those  held  in  socage  ;  the  wardship  of  the  lord  being 
reserved  as  to  the  remaining  third  part  of  knight-service  lands.) 

14-17.  (Miscellaneous  provisions  reserving  rights  of  king 
and  lords.) 

(2)  Ak  Act  for  the  explanation  of  the  Statute  of  Wills. 
34  and  35  Hemy  VIII,  cap.  5. 

The  former  statute  is  explained  in  sections  3-8  to  cover 
cases  of  a  person  or  persons  having  a  sole  estate,  or  interest  in 
fee  simple,  or  seised  in  fee  simple  or  coparcenaiy,  or  in  common 
in  fee  simple  in  possession,  reversion,  or  remainder. 

The  devise  may  be  '  to  any  person  or  persons,  except  Bodies 
Politick  and  Corporate.' 

1 4.  And  it  is  further  declared  and  enacted  by  the  authority 
aforesaid,  That  wills  or  testaments  made  of  any  manors,  lands, 
tenements  or  other  hereditaments  by  any  woman  covert,  or 
person  within  the  age  of  twenty-one  years,  idiot  or  by  any  per- 
son de  non  sane  memory,  shall  not  be  taken  to  be  good  or 
efiectual  in  the  law  ^. 

*  See  34  and  35  Henry  VIII,  c.  5.  sect.  6.  This  is  interpreted  to  mean 
that  when  lands  held  of  the  King  are  devised  by  will,  the  devisee  must  sue 
out  of  Chancery  the  King's  'pardon  for  alienation,'  paying  for  it  the  third 
part  of  the  yearly  value  of  the  lands. 

^  The  numbering  of  the  sections  in  these  Statutes  is  taken  from  '  Statutes 
at  Large.'    The  divisions  in  'Statutes  of  the  Eealm'  are  different. 


VIII.]  7   ^^^^^-  I^  ^^^  I  ^^^^'  ^-36.  311 

(3)    The  Act  for  the  Amendment  of  the  Laws  with  ee- 
SPECT  TO  Wills.    7  William  IV  and  i  Victoria,  cap.  26. 

This  Statute  repeals  the  former  Statutes  upon  the  subject  of 
wills,  and  constitutes  the  basis  upon  which  the  present  law  of 
wills  of  real  property  rests.  The  most  important  of  its  general 
provisions  are  the  following  : — 

Sect.  3.  It  shall  be  lawful  for  eveiy  person  to  devise,  be- 
queath or  dispose  of  by  bis  will,  executed  in  manner  hereinafter 
required,  all  real  estate  and  all  personal  estate  which  he  shall 
be  entitled  to,  either  at  law  or  in  equity,  at  the  time  of  liis 
death,  and  which,  if  not  so  devised,  bequeathed  or  disposed  of, 
Avould  devolve  upon  the  heir-at-law,  or  customary  heir^  of  him, 
or,  if  he  became  entitled  by  descent,  of  his  ancestor,  or  upon 
his  executor  or  administrator ;  and  that  the  power  hereby  given 
shall  extend  to  all  real  estate  of  the  nature  of  customary  fi-ee- 
hold  ^  or  tenant  right,  or  customarj'  or  copyhold,  notwithstand- 
ing that  the  testator  may  not  have  surrendered  the  same  to 
the  use  of  his  wilP,  or  notwithstanding  that  being  entitled 
as  heir,  devisee,  or  otherwise  ta  be  admitted  thereto  he  shall  not 
have  been  admitted  thei;eto,  or  notwithstanding  that  the  same, 
in  consequence  of  the  want  of  a  custom  to  devise  or  sui-render 
to  the  use  of  a  will,  or  otherwise,  could  not  at  law  have  been 
disposed  of  by  will,  if  this  Act  had  not  been  made,  or  not- 
withstanding that  the  same,  in  consequence  of  there  being  a 
custom  that  a  will  or  a  surrender  to  the  use  of  a  will  should 
continue  in  force  for  a  limited  time  only,  or  any  other  special 
custom,  could  not  have  been  disposed  of  by  will  according 
to  the  power  contained  in  this  Act,  if  this  Act  had  not  been 
made ;  and  also  to  estates  2-^^'"  autre  vie,  whether  there  shall 
or  shall  not  be  any  special  occupant  thereof*,  and  whether 
the  same  shall  be  freehold,  customary  freehold,  tenant  right, 
customary  or  copyhold,  or  of  any  other  teuui'e,  and  whether 
the  same  shall  be  a  corporeal  or  an  incorporeal  hereditament ; 
and  also  to  all  contingent,  executory,  or  other  future  interests 
in  any  real  or  personal  estate*,  whether  the  testator  may  or  may 
not  be  ascertained  as  the  person  or  one  of  the  persons  in  whom 
the  same  respectively  may  become  vested,  and  whether  he  may 

'  See  above,  p.  216. 

*  See  above,  p.  217,  n.  4.  By  this  provision  wills  of  copyhold  estates  are 
assimilated  to  wills  of  freeholds. 

^  See  above,  p.  221,  n.  i.     *  See  above,  p.  117,  n.  3.     °  See  above,  p.  194. 


312  History  of  Wills  of  Law. 

be  entitled  thereto  under  the  instrument  by  which  the  same 
respectively  were  created,  or  under  any  disposition  thereof  by 
deed  or  will ;  and  also  to  all  rights  of  entry  for  conditions 
broken,  and  other  rights  of  entry  ^ ;  and  also  to  such  of  the 
same  estates,  interests,  and  i-ights  resj)ectively,  and  other  real 
and  personal  estate  as  the  testator  may  be  entitled  to  at  the 
time  of  his  death,  notwithstanding  that  he  may  become  entitled 
to  the  same  subsequently  to  the  execution  of  his  will. 

7.  No  will  made  by  any  person  under  the  age  of  twenty-one 
years  shall  be  valid. 

8.  No  will  made  by  any  married  woman  shall  be  valid,  ex- 
cept such  a  will  as  might  have  been  made  by  a  married  woman 
before  the  passing  of  this  Act^. 

18.  Eveiy  will  made  by  a  man  or  woman  shall  be  revoked 
by  his  or  her  marriage  ^,  (except  a  will  made  in  exercise  of  a 
power  of  appointment,  when  the  real  or  personal  estate  thereby 
appointed  would  not  in  default  of  such  appointment  pass  to  his 
or  her  heir,  customary  heir,  executor,  or  administrator,  or  the 
person  entitled  as  his  or  her  next  of  kin  under  the  Statute  of 
Distribvitions). 

19.  No  will  shall  be  revoked  by  any  presumption  of  an 
intention  on  the  ground  of  an  alteration  in  circumstances. 


o"- 


20.  No  will  or  codicil  or  any  part  thereof  shall  be  revoked 
otherwise  than  as  aforesaid,  or  by  another  will  or  codicil  ex- 
ecuted in  manner  hereinbefore  required,  or  by  some  writing 
declaring  an  intention  to  revoke  the  same,  and  executed  in  the 
manner  in  which  a  will  is  hereinbefore  required  to  be  executed, 
or  by  the  burning,  tearing,  or  otherwise  destroying  the  same 
by  the  testator,  or  by  some  person  in  his  presence  and  by  his 
direction,  with  the  intention  of  revoking  the  same. 

*  A  right  of  entry,  though  it  coukl  only  be  reserved  in  favour  of  the 
grantor  or  his  heirs  (above,  p.  190),  is  thus  rendered  capable  of  alienation 
by  will.  These  rights  are  also,  by  8  and  9  Vict.  c.  106.  s.  6,  made  alien- 
able by  deed  inter  vivos. 

^  See  above,  p.  265,  n.  2.  A  married  woman  can  make  a  will  in  exercise 
of  the  power  of  appointment  vested  in  her  (see  above,  pp.  284,  2S5).  She 
can  also  dispose  by  will  of  her  equitable  interest  in  real  property  held  to 
her  separate  use. 

^  Before  this  enactment  the  marriage  of  a  man  was  not  sufficient  to 
revoke  his  will  unless  he  had  also  a  child  born  to  him. 


CHAPTER   IX. 

ABOLITION  OF  MILITARY  TENUEES. 

IT  was  doubtless  the  prevalence  of  the  system  of  conveying 
lands  to  uses  which,  by  alleviating  the  pressure  of  the  feudal 
burdens,  delayed  the  change  in  the  law  which  is  the  subject  of 
this  chapter.  When  by  the  selfish  legislation  of  Henry  YIII 
this  mode  of  alleviation  was  rendered  ineffectual,  and  the 
pressure  was  still  further  increased  by  the  cx'eation,  under  the 
provisions  of  the  Statute  32  Henry  ViLL,  cap.  46,  of  a  Court  of 
Wards  and  Liveries,  for  the  express  j)urpose  of  providing  a  more 
effectual  and  speedy  mode  of  asserting  the  king's  feudal  rights,  the 
burdens  became  too  heavy  to  be  borne ;  and  the  king  being  now 
the  immediate  lord  of  a  vast  portion  of  the  land  of  the  country,  all 
classes  of  tenants  were  more  interested  in  obtaining  relief  from 
feudal  burdens  owing  to  the  king,  than  in  preserving  those  due 
to  such  of  them  as  were  lords  of  manors.  A  striking  picture  of 
the  condition  of  a  tenant  in  capite  by  knight- service  is  given  by 
Blackstone'.  'The  heir,  on  the  death  of  his  ancestor,  if  of  full 
age,  Avas  plundered  of  the  first  emoluments  arising  from  his 
inheritance,  by  way  of  relief  and  primer  seisin;  and,  if  under 
age,  of  the  whole  of  his  estate  during  infancy.  And  then,  as 
Sir  Thomas  Smith  very  feelingly  complains  ^,  "  when  he  came 
to  his  own,  after  he  was  out  of  wardship,  his  woods  decayed, 
houses  fallen  down,  stock  wasted  and  gone,  lands  let  forth  and 

*  Vol.  ii.  p.  76. 

^  The  Commonwealtla  of  England,  book  iii.  c.  5,  written  in  the  reign 
of  Elizabeth. 


314  Aholitiofi  of  Military  Tenures.  [chap. 

ploughed  to  be  barren,"  to  reduce  him  still  farther,  he  was  yet 
to  pay  half-a-year's  profits  as  a  fine  for  suing  out  livery ;  and 
also  the  price  or  value  of  his  marnage.  Add  to  this  the  un- 
timely and  expensive  honour  of  Jcnighthood,  to  make  his 
poverty  more  completely  splendid ' ;  and  when  by  these  deduc- 
tions his  fortune  was  so  shattered  and  ruined,  that  perhaps  he 
Avas  obliged  to  sell  his  patrimony,  he  had  not  even  that  poor 
privilege  allowed  him  without  paying  an  exorbitant  fine  for  a 
licence  of  alienation.^ 

In  the  reign  of  James  I,  a  project  was  brought  forward  for 
the  removal  of  feudal  burdens  by  converting  all  tenure  of  lands 
held  of  the  king  or  other  lords  into  tenure  by  fealty  only,  and 
such  rent  as  was  then  due,  and  prohibiting  the  creation  of  any 
other  species  of  tenure,  compensation  being  made  to  the  king 
and  other  lords  for  the  loss  of  feudal  dues  by  the  payment  of 
an  annual  rent.  This  proposal  was  not  carried  into  effect.  Sir 
E.  Coke  mentions  it  with  a  strong  expression  of  approval,  and 
of  hope  for  its  ultimate  success  ^. 

This  hope  was  realised  by  the  Long  Parliament.  On  the 
24th  of  February,  1645,  the  House  of  Commons  sent  up 
to  the  Lords  a  resolution,  '  That  the  Court  of  "Wards  and 
Liveries,  and  all  wardships,  liveries,  primer  seisins,  or  ouster- 

^  The  prerogative  of  the  Crovm  of  compelling  the  tenants  in  capite  to  be 
knighted,  recog-nised  by  the  Statute  de  Militibus,  i  Edward  II,  stat.  1,  had 
become  one  of  the  most  oppressive  of  the  feudal  burdens.  It  was  abolished 
by  the  Statute  16  Car.  I,  c.  20.     See  Blackstone,  ii.  69. 

^  '  At  the  parliament  holden  1 8  Jacobi  regis  it  was  moved  on  the  king's 
behalf,  and  commended  by  the  king  to  the  Parliament,  for  a  competent 
yearly  rent  to  be  assured  to  his  Majesty,  his  heirs  and  successors,  that  the 
king  would  assent  that  all  wardships,  primer  seisins,  reliefs  for  tenures  in 
capite  or  by  knight's-service  should  be  discharged.  AVherein  amon  ^st  certain 
old  parliament  men  these  thirteen  things  did  fall  into  consideration  for  the 
effecting  thereof.  .  .  Which  motion,  though  it  proceeded  not  to  effect,  yet  we 
thought  good  to  remember  it  together  with  these  considerations,  hoping  that 
so  good  a  motion,  tending  to  the  honour  and  profit  of  the  king  and  his 
crown  for  ever,  and  the  freedom  and  the  quiet  of  his  subjects  and  their 
posterities,  will  some  time  or  other  (by  the  grace  of  God)  by  authority  of 
Parliament  one  way  or  other  take  effect  and  be  established.*  Coke's  4th 
Institute,  p.  202,  &c. 


IX.]  Proceedings  in  the  Long  Parliament,  315 

lemains,  and  all  other  charges  incident  or  arising  for  or 
by  reason  of  wardship,  livery,  primer  seisin,  or  ousterlemain, 
be  from  this  day  taken  away ;  and  that  all  tenures  by  homage, 
and  all  fines,  licences,  seizures,  and  pardons  for  alienation,  and 
all  other  charges  incident  thereunto,  be  likewise  taken  away ; 
and  that  all  tenures  by  knight-service  either  of  his  Majesty  or 
others,  or  by  knight-service  or  socage  in  capite  of  his  Majesty, 
be  turned  into  free  and  common  socage.' 

The  Lords  at  once  assented  to  the  vote  in  the  form  in  which 
it  was  sent  up  by  the  Commons^;  and  the  resolution  was  con- 
firmed by  an  Act  of  Parliament  passed  in  1656  ^. 

Upon  the  Restoration  it  was  found  necessary  to  confirm  by 

^  A  message  was  brought  from  the  House  of  Commons  by  Sir  Henry 
Vane,  Junior,  Knight,  '  That  in  this  time  of  great  distractions,  wherein  the 
Lords  and  the  House  of  Commons  and  the  whole  kingdom  have  adventured 
their  lives  and  fortunes,  and  for  recompense  to  the  whole  kingdom  they 
have  thought  to  take  away  a  great  burden,  therefore  have  made  a  vote 
wherein  the  House  of  Commons  desire  their  Lordship's  concurrence.' 

'Eesolved  upon  the  question  nemine  contradicente  that  this  House 
agrees  to  this  vote  as  it  is  now  brought  up  from  the  House  of  Commons.' 
(Journals  of  the  House  of  Lords,  vol.  viii.  p.  183.  Die  Martis,  24° 
die  Februarii. 

'^  '  Whereas  the  four  and  twentieth  day  of  February  in  the  year  of  our 
Lord  1645  the  Court  of  AVards  and  Liveries  and  all  wardships,  liveries, 
primer  seisins,  and  ousterlemains,  and  all  other  charges  incident  or  arising 
for  or  by  reason  of  wardships,  livery,  primer  seisins,  or  ousterlemains,  and 
all  tenures  by  homage,  and  all  fines,  licences,  seizures,  and  pardons  for 
alienation,  and  all  other  charges  incident  thereunto,  were  by  the  Lords  and 
Commons  then  assembled  in  Parliament  taken  away,  and  aU  tenures  by 
knight-service,  either  of  the  king  or  others,  or  by  knight-service  in  capite,  ot 
socage  in  capite  of  the  king,  were  turned  into  free  and  common  socage,*  for  the 
further  establishing  and  confirming  the  same,  Be  it  declared  and  enacted  by 
His  Highness  the  Lord  Protector  and  the  Parliament,  that  the  Court  of  Wards 
and  Liveries,  and  all  wardships,  liveries,  primer  seisins,  and  ousterlemains, 
and  all  other  charges  incident  and  arising  for  or  by  reason  of  any  such 
tenure,  wardship,  livery,  primer  seisin,  or  ousterlemain,  be  taken  away, 
from  the  said  four  and  twentieth  day  of  February  1645,  .and  that  all 
homage,  fines,  licences,  seizures,  pardons  for  alienation,  incident  or  arising 
for  or  by  reason  of  wardship,  liverj',  primer  seisin,  or  ousterlemain,  and  all 
other  ch.arges  incident  thereunto  be  likewise  taken  away,  and  is  hereby  ad- 
judged and  declared  to  be  taken  away  from  the  said  twenty-fourth  day  of 


3i6  Abolition  of  Military  Tenures.  [chap. 

Statute  the  acts  of  the  Long  Parliament  in  respect   of  feudal 
tenures. 

It  will  be  seen  that  the  subjoined  Statute  abolished  all  the 
ancient  law  with  respect  to  tenure  by  knight-service  and  its 
incidents.  It  did  not  however  introduce  any  new  law.  The 
principal  effects  of  the  Statute  have  been  that  in  most  instances 
all  remembrance  of  the  relation  between  lord  and  freehold 
tenant  has  passed  away^,  and  that  all  freehold  lands  have  become 
capable  of  being  devised  by  will^. 

12  Chables  II,  cap.  24. 

An  Act  taking  away  the  Court*  of  Wards  and  Liveries, 
AND  Tenures  in  Capite  ^,  and  by  Knight-Service,  and 
Purveyance,  and  for  settling  a  Revenue  upon  his 
Majesty  in  lieu  thereof. 

Whereas  it  hath  been  found  by  former  experience  that  the 
Court  of  Wards  and  Liveries  and  tenures  by  knight-service 
either  of  the  King  or  others,  or  by  knight-service  in  cafite^  or 
socage  in  cajjite  of  the  king,  and  the  consequents  upon  the  same, 

February  1645,  ^'^^  that  all  tenures  in  cajnte  and  by  knight-service  of  the 
late  king  or  any  other  person,  and  all  tenures  by  socage  in  chief,  be  taken 
away,  and  all  tenures  are  hereby  enacted  and  declared  to  be  turned  into  free 
and  common  socage  from  the  said  twenty-fourth  day  of  February  1645,  and 
shall  be  so  construed,  adjudged  and  declared  to  be  for  ever  hereafter  turned 
into  free  and  common  socage.  Nevertheless  it  is  hereby  enacted  that  all  rents 
certain,  and  heriots,  due  to  mesne  lords  or  other  private  persons,  shall  be  paid; 
and  that  where  any  relief  or  double  ancient  yearly  rent,  upon  the  death  of 
an  ancestor,  was  in  such  cases  formerly  due  and  payable,  a  double  ancient 
yearly  rent  only  in  lieu  thereof  shall  now  be  paid  upon  the  death  of  an 
ancestor  as  in  free  and  common  socage,  and  that  the  same  shall  be  recovered 
by  like  remedy  in  law,  as  rents  and  duties  in  free  and  common  socage.' 
Scobell's  Acts  and  Ordinances  of  ParKament,  Anno  1656,  c.  4. 

^  See  above,  pp.  163,  164.  ^  See  above,  p.  299. 

'  Madox,  Hist,  of  Exch.  p.  432,  note,  suggests  that  the  expression  'tenures 
in  capite'  is  used  erroneously  in  this  Statute.  'Tenant  in  capite'  properly 
means  simply  'immediate  tenant,'  whether  by  knight-service,  socage,  or 
otherwise.  But  a  confused  idea  had  arisen  that  tenure  in  capite  was  a  par- 
ticular species  of  tenure  of  the  Crown,  distinct  from  ordinary  knight-service, 
etc.  Thus  Elizabeth  by  letters  patent  granted  lands  '  tenendum  de  nobis 
in  libero  socagio  et  non  in  capite.'  This,  as  Madox  says,  is  a  contradiction 
in  terms. 


IX.]  12  Car.  II,  c.  24.  317 

have  been  much  more  burthensome  grievous  and  prejudicial  to 
the  kingdom  than  they  have  been  beneficial  to  the  king ;  And 
whereas  since  the  intermission  of  the  said  Court,  which  hath 
been  from  the  fom-  and  twentieth  day  of  February,  which  was 
in  the  year  of  our  Lord  one  thousand  six  hundred  forty  and 
five,  many  persons  have  by  will  and  otherwise  made  disposal 
of  their  lands  held  by  knight-service,  whereupon  divers  ques- 
tions might  j)ossibly  arise  unless  some  seasonable  remedy  be 
taken  to  prevent  the  same ;  Be  it  therefore  enacted  by  the 
King  our  Sovereign  Loixl,  with  the  assent  of  the  Lords 
and  Commons  in  Paidiament  assembled,  and  by  the  authority 
of  the  same,  and  it  is  hereby  enacted.  That  the  Court 
of  Wards  and  Liveries,  and  all  wardships,  liveries,  primer 
seisins  and  ousterlemains,  values  and  forfeitures  of  marriages, 
by  reason  of  any  tenure  of  the  King's  Majesty,  or  of  any 
other  by  knight-service,  and  all  mean  rates,  and  all  other 
gifts,  grants,  and  charges,  incident  or  arising  for  or  by  reason  of 
wardships,  liveries,  primer  seisins,  or  ousterlemains  be  taken 
away  and  discharged,  and  are  hereby  enacted  to  be  taken  away 
and  discharged,  from  the  said  twenty-fourth  day  of  February  one 
thousand  six  hundred  forty -five ;  any  law,  statute,  custom,  or 
usage  to  the  contrarj^  hereof  in  any  wise  notwithstanding  :  And 
that  all  fines  for  alienations,  seizures,  and  pardons  for  aliena- 
tions, tenure  by  homage,  and  all  charges  incident  or  arising  for 
or  by  reason  of  wardship,  livery,  primer  seisin,  or  ousterlemain, 
or  tenure  by  knight-service,  escuage,  and  also  aide  ^mr  file 
Tnarrier,  et  jnir  faire  fitz  chivalier,  and  all  other  charges  incident 
thereunto,  be  likewise  taken  away  and  discharged  from  the  said 
twenty-fom-th  day  of  February  one  thousand  six  hundred  forty 
and  five^:  any  law,  statute,  custom,  or  usage  to  the  contrary  hereof 
in  any  wise  notwithstanding :  And  that  all  tenures  by  knight- 
service  of  the  king,  or  of  any  other  person,  and  by  knight 
service  in  capite,  and  by  socage  in  ccqnte  of  the  king,  and  the  finiits 
and  consequents  thereof,  happened  or  which  shall  or  may  hereafter 
hajopen  or  arise  thereupon  or  thereby,  be  taken  away  and  dis- 
charged; any  law,  statute,  custom  or  usage  to  the  contrary  hei'eof 
in  any  wise  notwithstanding ;  And  all  tenures  of  any  honours, 
manors,  lands,  tenements,  or  hereditaments,  of  any  estate  of 
inheritance  at  the  common  law,  held  either  of  the  king  or 
of  any  other  person  or  persons,  bodies  politick  or  corporate,  are 
hereby  enacted  to  be  turned  into  free  and  common  socage  ^  to 

^  See  above,  pp.  31-34,  and  Chap.  II.  §  3. 
*  As  to  socage,  see  above,  pp.  37-39- 


3i8  Abolition  of  Military  Tenures.  [chap. 

all  intents  and  purposes,  from  the  said  twenty-fourtli  day  of 
February  one  thousand  six  hundred  forty-five,  and  shall  be  so 
construed,  adjudged,  and  deemed  to  be  from  the  said  twenty- 
fourth  day  of  Febrviary  one  thousand  six  hundred  forty-five, 
and  for  ever  hereafter,  turned  into  free  and  common  socage; 
any  law,  statute,  custom,  or  usage  to  the  contrary  hereof  in  any 
wise  notwithstanding. 

2.  And  that  the  same  shall  for  ever  hereafter  stand  and  be 
discharged  of  all  tenure  by  homage,  escuage,  voyages  royal,  and 
charges  for  the  same,  wardships  incident  to  tenure  by  knight's- 
service,  and  values  and  forfeitures  of  marriage,  and  all  other 
charges  incident  to  tenure  by  knight-service,  and  of  and  from 
aide  pur  file  marrier,  and  aide  pur  fairefitz  chivalier;  any  law, 
statute,  usage,  or  custom  to  the  contraiy  in  any  wise  notwith- 
standing. And  that  all  conveyances  and  devises  of  any  manors, 
lands,  tenements,  and  hereditaments,  made  since  the  said  twenty- 
fourth  day  of  February,  shall  be  expounded  to  be  of  such  effect 
as  if  the  same  manors,  lands,  tenements,  and  hereditaments  had 
been  then  held  and  continued  to  be  holden  in  free  and  common 
socage  only ;  any  law,  statute,  custom,  or  usage  to  the  contrary 
hereof  in  anj^wise  notwithstanding. 

3.  And  be  it  further  ordained  and  enacted  by  the  authority 
of  this  present  Parliament,  That  one  Act  made  in  the  reign  of 
King  Henry  the  Eighth,  intituled  An  Act  for  the  Establish- 
ment of  the  Court  of  the  King's  Wards ;  and  also  one  Act  of 
Parliament  made  in  the  thirty-third  year  of  the  reign  of  the 
said  King  Hemy  the  Eighth,  concerning  the  officers  of  the 
Courts  of  Wards  and  Liveries,  and  every  clause,  article,  and 
matter  in  the  said  Acts  contained,  shall  from  henceforth  be 
repealed  and  utterly  void. 

4.  And  be  it  further  enacted  by  the  authority  aforesaid.  That 
all  tenures  hereafter  to  be  created  by  the  King's  Majesty,  his 
heirs  or  successors,  upon  any  gifts  or  grants  of  any  manors, 
lands,  tenements  or  hereditaments,  of  any  estate  of  inheritance 
at  the  common  law,  shall  be  in  free  and  common  socage,  and 
shall  be  adjudged  to  be  in  free  and  common  socage  only, 
and  not  by  knight-service,  or  in  capite  ^,  and  shall  be  discharged 
of  all  wardship,  value  and  forfeiture  of  marriage,  livery,  primer 
seisin,  ousterleniain,  aide  pur  fair  fitz  chivalier  and  pur  file 
marrier  ;  any  law,  statute,  or  reservation  to  the  contraiy  thereof 
any  wise  notwithstanding. 

5.  Provided  nevertheless,  and  be  it  enacted,  That  this  Act,  or 

*  See  note  3,  p.  316. 


IX.]  12  Car.  II,  e.  24.  319 

anything  herein  contained,  shall  not  take  away,  nor  be  con- 
strued to  take  away,  any  rents  certain,  heriots,  or  suits  of  court, 
belonging  or  incident  to  any  former  tenure  now  taken  away  or 
altered  by  virtue  of  this  Act,  or  other  services  incident  or  be- 
longing to  tenure  in  common  socage  due  or  to  gi*ow  due"  to  the 
King's  Majesty,  or  mean  lords,  or  other  private  person,  or  the 
fealty  and  distresses  incident  thereunto ;  and  that  such  relief 
shall  be  paid  in  respect  of  such  rents  as  is  paid  in  case  of  a 
death  of  a  tenant  in  common  socage. 

6.  Provided  always,  and  be  it  enacted,  That  anything  herein 
contained  shall  not  take  away,  nor  be  construed  to  take  away 
any  fines  for  alienation  due  by  particular  customs  of  particular 
manors  and  places,  other  than  fines  for  alienations  of  lands  or 
tenements  holden  immediately  of  the  king  in  capite. 

7.  Provided  also,  and  be  it  further  enacted.  That  this  Act,  or 
anything  herein  contained,  shall  not  take  away,  or  be  construed 
to  take  aAvay,  tenures  in  frank-almoign\  or  to  subject  them  to 
any  greater  or  other  services  than  they  now  are  ;  nor  to  alter  or 
change  any  tenure  by  c(5py  of  court-roll,  or  any  services  incident 
thereunto ;  nor  to  take  away  the  honorary  services  of  gi'and 
serjeanty^,  other  than  of  wardship,  marriage,  and  value  of 
forfeiture  of  marriage,  escuage,  voyages  royal,  and  other  charges 
incident  to  tenure  by  knight-service ;  and  other  than  aide  pur 
fair  jitz  chivalier,  and  aide  pur  file  manner. 

8.  And  be  it  further  enacted  by  the  authority  afoi'esaid,  That 
where  any  person  hath  or  shall  have  any  child  or  children  under 
the  age  of  one  and  twenty  years,  and  not  married  at  the  time 
of  his  death  ;  that  it  shall  and  may  be  lawful  to  and  for  the 
father  of  such  child,  or  children,  whether  born  at  the  time  of  the 
decease  of  the  father,  or  at  that  time  in  ventre  sa  mere,  or 
whether  such  father  be  within  the  age  of  one  and  twenty  years 
or  of  full  age,  by  deed  executed  in  his  life-time,  or  by  his  last 
will  and  testament  in  writing,  in  the  presence  of  two  or  more 
credible  witnesses,  in  such  manner,  and  from  time  to  time  as  he 
shall  respectively  think  fit,  to  dispose  of  the  custody  and  tuition 
of  such  child  or  children  for  and  during  such  time  as  he  or  they 
shall  respectively  remain  under  the  age  of  twenty-one  years, 
or  any  lesser  time,  to  any  person  or  persons  in  possession  or 
remainder,  other  than  Popish  recusants ;  and  that  such  disposi- 
tion of  the  custody  of  such  child  or  children,  made  since  the 
twenty-fourth  of  February  one  thousand  six  hundred  and  forty- 

*  See  above,  p.  30.  *  See  above,  p.  30. 


320  Abolition  of  Military  Tenures. 

five,  01'  hereafter  to  be  made,  shall  be  good  and  effectual  against 
all  and  every  person  or  persons  claiming  the  custody  or  tuition 
of  such  child  or  children,  as  g-uardian  in  socage  or  otherwise : 
And  that  such  person  or  persons  to  whom  the  custody  of  such 
child  or  children  hath  been  or  shall  be  so  disposed  or  devised  as 
aforesaid,  shall  and  may  maintain  an  action  of  ravishment  of 
ward  or  trespass  against  any  person  or  persons  which  shall 
wrongfully  take  away  or  detain  such  child  or  children,  for  the 
recovery  of  such  child  or  children  ;  and  shall  and  may  recover 
damages  for  the  same  in  the  said  action  for  the  use  and  benefit 
of  such  child  or  children^. 

9.  And  be  it  fui'ther  enacted,  That  such  person  or  persons  to 
whom  the  custody  of  such  child  or  children  hath  been  or  shall 
be  so  disposed  or  devised,  shall  and  may  take  into  his  or  their 
custody  to  the  use  of  such  child  or  children  the  profits  of  all 
lands,  tenements  and  hereditaments  of  such  cliild  or  children ; 
and  also  the  custody,  tuition  and  management  of  the  goods, 
chattels  and  personal  estate  of  such  child  or  children,  till  their 
respective  age  of  one  and  twenty  years,'  or  any  lesser  time,  ac- 
cording to  such  disposition  aforesaid,  and  may  bring  such  action 
or  actions  in  relation  thereunto  as  by  law  a  guardian  in  common 
socage  might  do. 

10.  Provided  also,  That  this  Act,  or  anything  herein  con- 
tained, shall  not  extend  to  alter  or  prejudice  the  custom  of  the 
City  of  London,  nor  of  any  other  city  or  town  corporate,  or  of 
the  town  of  Berwick-upon-Tweed,  concerning  orphans ;  nor  to 
discharge  any  apprentice  from  his  appi'enticeship. 

11.  Provided  also.  That  neither  this  Act,  nor  anything  therein 
contained,  shall  infringe  or  hm't  any  title  of  honour,  feodal  or 
other,  by  which  any  person  hath  or  may  have  right  to  sit  in  the 
Lords'  House  of  Parliament,  as  to  his  or  their  title  of  honour  or 
sitting  in  Parliament,  and  the  privilege  belonging  to  them  as 
Peers ;  this  Act  or  anji;hing  therein  contained  to  the  contrary' 
in  anywise  notwithstanding. 

15-52.  Provisions  for  recompense  to  his  Majesty  for  the 
Court  of  Wards  and  purveyances  by  an  excise  duty  upon  beer, 
ale,  etc. 

*  See  above,  p.  33 ;  and  compare  Chap.  II.  §  3  (2),  (3),  and  Chap.  III. 
§  2. 


CHAPTER    X. 

TITLES  OR  MODES  OF  ACQUISITION  OF  RIGHTS 
OVER  THINGS  REAL. 

_L  HE  subject  of  titles  or  modes  of  acquisition  of  rights  follows 
in  logical  order  next  upon  the  discussion  of  the  history  and 
nature  of  the  rights  themselves.  It  is  proposed  in  this  chapter 
to  present  in  outline  a  brief  account  of  the  various  modes  of 
acquisition  of  rights  over  land  recognised  by  English  law.  For 
this  purpose  it  will  be  necessary  to  refer  back  to  many  points 
which  have  been  explained  in  the  preceding  chapters,  and  also 
to  notice  the  main  changes  in  the  law  which  have  taken  place 
subsequent  to  those  which  have  been  already  mentioned. 

A  title  to  a  right  or  a  collection  of  rights  over  land  is, 
according  to  Blackstone ',  '  the  means  whereby  the  owner  of 
lauds  hath  the  just  possession  of  his  property.' 

According  to  the  fuller  definition  given  by  Austin,  it  is  the 
collection  of  'facts  or  events  on  which  by  the  dispositions  of 
the  law  rights  arise  or  come  into  being,  and  also  the  facts  or 
events  on  which  by  the  dispositions  of  the  law  they  terminate, 
or  are  extinguished  ^.'  For  practical  purposes  the  inquiry  may 
be  confined  to  the  different  modes  of  acquiring  rights  over  land. 
For,  according  to  English  law,  rights  over  land  are  never  lost 
or  abandoned  so  as  to  become  res  nullius.  A  mode  of  losing  a 
right  of  this  class  is  always  a  mode  of  acquisition  by  somebody 
else.  For  example,  if  lands  cease  to  have  an  owner  by  reason 
of  a  failure  of  heirs,  they  at  once  escheat  to  the  lord*.  For 
the  purposes  of  this  chapter,  therefore,  the  word  'title'  may 
be  taken  to  mean  simply  '  mode  of  acquisition.' 

*  ii.  p.  195.  '  Austin,  ii.  p.  902.  ^  See  above,  p.  9. 


522  Titles.  [chap.  X. 

Many  classifications  have  been  given  of  the  groups  of  facts  or 
events  to  which  the  law  attaches  as  a  consequence  the  loss  or 
acquisition  of  rights  over  land.  The  following  arrangement  may 
perhaps  be  accepted  in  default  of  a  better.  There  are  some 
recognised  modes  of  acquisition  which  cannot  well  be  brought 
under  one  head.  To  attempt  to  do  so  would  be  to  present  a 
false  conception  of  a  uniformity  which  does  not  exist  ^ 

Titles  or  modes  of  acquisition  may  perhaps  be  most  con- 
veniently classed  under  the  heads  of  title  by  alienation,  title 
by  succession,  or  devolution  from  a  person  dying  intestate,  and 
the  remaining  modes  of  acquisition  must  be  thrown  into  a 
miscellaneous  class. 

§  I.   Title  hy  alienation. 

By  alienation  is  meant  the  intentional  and  voluntary  transfer 
of  a  right  by  the  person  in  whom  the  right  resides  to  another 
person  or  persons  ^. 

In  order  that  title  by  alienation  may  be  effectual  in  any  given 
case,  the  following  conditions  must  be  present.  The  person 
having  the  right  intended  to  be  conveyed  must  be  of  full 
capacity  to  convey  it ;  the  person  to  whom  the  right  is  to  be 
conveyed  must  be  of  capacity  to  take  and  keep  it ;  the  purpose 
of  the  conveyance  must  be  such  as  the  law  recognises  as  afford- 
ing a  sufficient  motive  for  the  transfer  of  the  property ;  and, 
lastly,  the  proper  mode  of  carrying  the  conveyance  iato  effect 
must  be  observed. 

By  the  first  of  these  conditions  it  is  necessary  that  the  person 
conveying  should  possess  the  requisite  intelligence,  and  be  in  a 
position  to  exercise  it  freely.  Hence  conveyances  by  idiots  or 
lunatics  are  absolutely  void '.    Such  a  person  is  incapable  of  the 

^  See  Austin,  ii.  p.  931. 

^  See  Austin's  Jurisprudence,  ii.  904.  Sometimes  alienation  is  divided 
into  voluntary  and  involuntary  alienation.  I  prefer  to  treat  of  the  dif- 
ferent kinds  of  so-called  involuntary  alienation  separately  under  the  mis- 
cellaneous kinds. 

^  Inconsistently  enough,  a  feofl&nent  with  livery  of  seisin,  at  least  before 


§  I.]  Conditions  of  Alienation.  323 

requisite  iatention.  An  infant  (a  person  under  twenty-one  years 
of  age)  is  not  completely  capable  of  having  the  requisite  inten- 
tion. His  conveyances  are  voidable,  subject,  that  is,  to  be 
ratified  or  avoided  by  him  when  he  comes  of  age  ^ 

Powers  of  dealing  with  the  estates  of  idiots  and  lunatics,  and 
of  enabling  infants  for  certain  purposes  to  make  effectual  con- 
veyances with  the  sanction  of  the  Court  of  Chanceiy,  have  been 
given  by  various  Acts  of  Parliament  ^. 

Similar  principles  apply  to  conveyances  by  persons  under 
duress,  that  is,  under  pressure  of  illegal  bodily  restraint,  or 
of  danger  to  life  or  limb  ^.  Conveyances  induced  by  such 
pressure  are  voidable. 

Married  women  are  under  a  special  disability  with  regard  to 
alienation.  By  the  common  law,  as  has  been  seen,  the  husband 
takes  a  sole  estate  in  the  lands  of  the  wife  during  the  marriage. 
The  wife  cannot  moreover  by  her  own  separate  act  during  the 
contmuance  of  the  marriage  make  any  effectual  conveyance  of  her 
reversionary  interest  in  lands.  The  old  mode  of  making  a  con- 
veyance of  the  wife's  lands  was  by  a  fine  ^,  to  which  the  husband 
and  wife  were  both  parties.  To  the  validity  of  a  fine  it  was  neces- 
sary that  the  wife  should  be  examined  apart  from  her  husband,  as 
a  security  that  the  conveyance  was  not  made  by  her  under  the 
coercion  of  her  husband  ^.  At  the  present  day  the  legal  estate 
of  a  married  woman  can  only  be  conveyed  by  deed  executed 
with  the  concuiTence  of  her  husband,  and  acknowledged  by  the 
woman,  on  being  examined  by  a  judge  or  commissioners  apart 
from  her  husband,  to  be  her  own  act ".     After  the  growth  of 

8  and  9  Vict.  c.  106.  s.  4,  was  not  void  but  only  voidable,  and  that  not  by 
the  lunatic  himself  but  only  by  his  comiuittee  or  heir.  This  arose  pro- 
bably from  the  almost  superstitious  veneration  for  this  solemn  mode  of 
conveying  lands. 

'  Except  that  a  feoffment  of  gavelkind  lands  by  a  person  of  the  age  of 
fifteen  years  is  by  the  custom  of  gavelkind  binding  upon  him.  See  above, 
p.  38. 

^  See  WiUiams  on  Real  Property,  pp.  65,  66. 

'  Blackstone,  i.  130,  136.  •*  See  above,  Chap.  II.  §  7. 

'  Williams  on  Real  Property,  p.  224. 

*  3  and  4  Will.  IV.  c.  74.  ss.  77-91. 

Y2 


324  Titles.  [chap.  x. 

equitable  interests,  and  the  emancipation  of  married  women 
from  the  restraints  of  the  common  law  as  to  property  by 
enabling  them  to  be  in  the  position  of  cesiuis  que  trustent,  or 
beneficiaries,  all  the  ordinary  powers  of  disposition  became  capable 
of  being  exercised  by  married  women  over  such  equitable  in- 
terests. When  land  therefore  is  vested  in  a  trustee  in  trust  for 
a  married  woman,  she  is  as  capable  of  disposing  of  the  interest 
as  if  she  were  unmarried,  subject  only  to  the  restraint  on 
alienation  usually  introduced  into  settlements,  as  has  been 
noticed  above  \ 

In  order  that  an  alienation  may  be  effectual,  the  alienee  must 
be  capable  of  receiving  and  keeping  the  estate  alienated.  The 
intention  of  accepting  is  not  in  English  law  of  as  great  import- 
ance as  a  complete  intention  to  give.  It  is  said  to  be  the  law 
of  England  that  in  no  instance  can  property  be  vested  in  a 
person  by  alienation  against  his  will  ^.  At  the  same  time  it 
appears  to  be  the  case  that,  provided  the  act  of  conveying  be 
perfect  and  complete  on  the  part  of  the  alienor,  the  property,  in 
the  absence  of  an  intention  not  to  accept,  vests  in  the  alienee. 
At  all  events  no  evidence  is  necessary  to  show  that  the  alienee 
intended  to  accept  it.  Nor  would  the  conveyance  be  void 
although  there  were  the  strongest  evidence  that  the  alienee 
was  incapable  of  an  accepting  mind.  A  conveyance  of  lands  to 
an  infant  or  a  lunatic  is  perfectly  valid,  as  against  the  alienor  and 
third  parties,  though  it  is  liable  to  be  avoided  in  favour  of  the 
lunatic  or  the  infant,  or  their  representatives,  if  it  should  be 
deemed  disadvantageous  to  him  ^  In  all  other  cases  the  proper 
mode  of  refusing  to  accept  a  conveyance  or  devise  of  land,  and 
so  rendering  it  inoperative,  is  an  execution  by  an  alienee  of  full 
capacity  of  a  deed  of  disclaimer  *. 

^  See  above,  p.  195.  As  to  the  power  of  a  married  woman  to  dispose  of 
interests  in  land  by  will,  see  Chap.  VIII.  p.  312,  n. 

*  Williams  on  Real  Property,  p.  94. 
^  Blackstone,  ii.  p.  292. 

*  See  Townson  v.  Tickell,  3  Bamewall  and  Alderson,  p.  31  ;  Doe  on  the 
demise  of  Smyth  v.  Smyth,  6  Bamewall  and  Cresswell,  p.  112;  Doe  on  the 
demise  of  Winder  v.  Lawes,  7  Adolphus  and  Ellis,  p.  212. 


§  I.]  Conditions  of  Alienation.  325 

A  married  woman  may  purchase  lands,  and  the  conveyance  is 
good  unless  the  husband  avoids  it  during  the  coverture  by  some 
act  expressing  his  dissent.  And  even  if  the  husband  consents, 
the  woman  or  her  heirs  may  avoid  the  purchase  after  the  decease 
of  the  husband :  and  now  a  married  woman  may  by  deed 
acknowledged  disclaim  a  purchase  '. 

There  are  certain  incapacities  to  hold  lands,  which  should  be 
noticed.  The  incapacity  of  corporations  has  already  been  men- 
tioned ^.  Aliens  too  formerly  might  purchase,  but  the  land  was 
held  subject  to  the  right  of  the  Crown  to  seize  and  appropriate 
it,  upon  the  facts  being  ascertained  by  the  verdict  of  a  jury, 
technically  called  '  upon  office  found,'  in  a  process  called  '  inquest 
of  office.'  By  an  early  exception  to  this  rule  an  alien  was  per- 
mitted to  hold  a  lease  for  years  of  land  for  the  jiurpose  of  trade 
or  merchandise.  And  by  the  Naturalization  Act  1870  aliens 
are  placed  on  the  same  footing  with  regard  to  the  purchase  and 
disposition  of  lands  as  natural-born  British  subjects  ^. 

A  further  restraint  on  alienation  in  reference  to  the  purposes 
or  objects  for  which  it  may  be  made  is  contained  in  the  Statute 
9  Greo.  II,  c.  36,  which,  after  reciting  that  '  gifts  or  alienations  of 
lands  in  mortmain  are  prohibited  or  restrained  by  Magna  Carta 
and  divei'S  other  wholesome  laws  as  prejudicial  to  and  against  the 
common  utility,  nevertheless  this  public  mischief  has  of  late 
increased  by  many  large  and  improvident  alienations  or  dis- 
positions made  by  languishing  or  dying  persons  to  uses  called 
charitable  uses  *,  to  the  disherison  of  their  lawful  heirs ' 
provided  that  no  lands  or  hereditaments,  or  money  or  personal 
estate  to  be  laid  out  in  the  purchase  of  lands  should  be  con- 
veyed or  settled  for  any  charitable  uses  unless  by  deed  executed 

^  8  and  9  Vict.  c.  106.  s.  7. 

2  Chap.  IV.  §  2. 

^  33  Vict.  c.  14.  s.  2.  But  the  Act  does  not  apply  to  interests  arising  by 
disposition  or  devolution  happening  before  the  passing  of  the  Act. 

*  By  the  Statute  23  Henry  VIII,  c.  10,  conveyances  of  lands  to  the  use 
of  churches,  or  for  the  services  of  a  priest,  etc.,  were  prohibited.  Sub- 
sequently it  was  held  that  this  prohibition  did  not  e.xtend  to  charitable 
uses.     Blackstoiie,  ii.  p.  273.     And  see  43  Elizabeth,  c.  4. 


326  Titles.  [chap.  x. 

in  the  presence  of  two  or  more  credible  witnesses  twelve 
calendar  months  at  least  before  the  death  of  the  donor  and 
enrolled  in  Chanceiy  within  six  months  of  its  execution,  and 
unless  the  gift  be  made  to  take  effect  in  possession  immediately, 
without  any  reservation  in  favour  of  the  grantor  or  persons 
claiming  through  him  \  By  this  Statute  therefore  a  gift  of 
lands  to  a  charity  hy  viill  is  made  wholly  void.  Certain  re- 
laxations of  the  provisions  of  the  Act  of  George  II  have  been 
since  made  by  various  Statutes  in  favour  of  gifts  for  the  pur- 
poses of  schools,  literary,  scientific  or  religious  pui'poses,  and 
public  parks  or  museums.  Othei*wise  the  law  remains  generally 
as  fixed  by  that  Statute. 

The  freedom  of  alienation  is  also  subject  to  restraint  in  favour 
of  creditors,  and  purchasers  for  valuable  considerations.  By  the 
Statute  1 3  Elizabeth,  c.  5,  conveyances  of  lands  and  goods  made 
for  the  purpose  of  delaying,  hindering,  or  defrauding  creditors 
are  made  void  as  agai^ist  them  unless  made  for  valuable  con- 
sideration to  a  bona  fide  purchaser  without  notice  of  the  fraud  ^. 
It  is  under  the  provisions  of  this  Statute  that  applications  are 
frequently  made  to  the  Court  of  Chancery  to  set  aside  post- 
nuptial settlements  on  a  wife  or  children  made  with  the  inten- 
tion of  placing  the  property  of  the  indebted  settlor  out  of  the 
reach  of  his  creditors.  And  by  the  Statute  27  Elizabeth,  c.  4, 
voluntary  conveyances  of  estates  in  land,  that  is,  conveyances 
without  any  consideration,  such  as  money  or  marriage,  and  con- 
veyances made  with  any  clause  of  revocation  at  the  will  of  the 
grantor,  are  void  as  against  subsequent  purchasers  for  money  or 
other  valuable  consideration.  Thus  any  person  who  takes  by 
virtue  of  a  mere  voluntary  gift  can  never  be  absolutely  secure 
that  his  donor  may  not  sell  the  land  to  a  purchaser  for  money, 
which  would  confer  on  such  purchaser  a  good  title  as  against 
the  donee  ^. 

^  There  is  an  exception  in  the  Statute  (s.  4)  in  favour  of  the  two  Uni- 
versities, and  the  Colleges  of  Eton,  Winchester,  and  Westminster. 

*  13  Eliz.  c.  5. 

^  A  mortgagee  is  a  purchaser  within  the  meaning  of  this  Act,  therefore  a 
settlement  on  a  wife  or  child  after  marriage  may  be  set  aside  in  favour  of  a 


§  I.]  Alienation  inter  Vivos.  327 

S\ich  are  the  conditions,  positive  and  negative,  of  alienation. 
Subject  to  these  conditions,  the  power  of  alienating  the  interest 
which  the  alienor  has  is  complete,  provided  that  he  follows  the 
mode  required  by  law. 

It  remains  to  point  out  the  acts  by  which  a  person  entitled  to 
rights  over  lands  may  transfer  them  to  another,  or  in  other 
words,  the  mode  in  which  a  person  may  acquire  those  rights  by 
alienation. 

The  first  division  into  which  alienation  falls  is  alienation 
inter  vivos,  and  alienation  by  will.  It  seems  correct,  for  reasons 
already  given,  to  class  acquisition  of  rights  over  land  by 
will  as  a  mode  of  alienation  and  not  as  a  mode  of  succession. 
In  Roman  law,  as  has  already  been  pointed  out  ^,  and  in  our 
own  law  of  personal  property,  wills  must  be  considered  as  a 
mode  of  succession. 

(i)  ^Postponing  acquisition  by  will  and  passing  to  alienation 
inter  vivos,  that  is  where  the  person  who  loses  the  right  and  the 
person  who  acquires  it  are  both  living,  and  the  right  passes  by 
a  voluntary  act  from  one  to  the  other,  the  next  division  will 
follow  the  division  of  rights  already  given  in  the  Appendix  to 
Part  I  \ 

Alienation  may  be  divided  into  the  alienation  (2)  of  rights  of 
property  or  ownership  over  land,  meaning  by  property  or  owner- 
ship the  enjoyment  of  those  indefinite  rights  of  user  over  land 
by  virtue  of  which  in  ordinary  language  a  person  is  entitled 
to  speak  of  land  as  his  property*;  (3)  of  rights  in  alieno 
solo,  which  comprise  the  class  called  incorporeal  hereditaments 
in  the  narrower  sense  ^.  Under  this  class  of  rights  in  alieno  solo 
may  also  be  placed,  following  the  classification  given  above, 
creditors'  rights  ^. 

subsequent  mortgagee  (Chapman  v.  Emery,  Cowper's  Reports,  278). 
Natural  love  .and  affection  is  not  a  sufficient  motive  or  consideration.  As 
against  subsequent  purchasers  such  conveyances  are  '  fraudulent,  feigned, 
and  covinous.'  s.  2. 

'  See  above,  pp.  301,  302.  *  See  Table  IV.  below,  p.  350. 

^  See  Table  I.  p.  232.  *  See  above,  p.  229. 

*  See  above,  Appendix  to  Part  I.  §  i  (11).  ^  See  above,  ib.  (14). 


328  Titles.  [chap.  X. 

(4)  Taking  first  the  modes  of  acquiring  those  rights  in  alieno 
solo  which  in  common  legal  language  are  styled  incorporeal 
hereditaments,  and  divided  as  has  been  seen  into  the  classes  of 
easements  and  profits,  the  api5roi:)riate  mode  of  acquiring  these 
rights  is  by  grant ;  that  is,  by  the  owner  of  the  soil  over  which 
the  right  is  to  be  exercised  making,  by  deed  operating  either  at 
common  law  or  under  the  Statute  of  Uses,  a  specific  grant  of 
the  right  of  way,  right  of  common,  or  other  easement  or  profit. 
No  solemnity  short  of  a  deed  is  regarded  by  our  law  as  sufiicient 
to  create  a  right  of  this  kind.  A  deed  is  equally  necessary 
whether  the  right  of  limited  user  for  convenience  or  profit  be 
a  right  to  be  enjoyed  by  the  successive  possessors  of  a  dominant 
tenement  (a  right  appurtenant),  or  a  right  to  be  enjoyed  by  the 
grantee  or  by  him  and  his  heirs  irrespective  of  the  possession  of 
any  tenement  (a  right  in  gross  ^). 

Sometimes  rights  of  this  class  are  created  not  by  express 
grant  but  by  implication  in  a  grant  of  other  rights.  For 
instance,  if  the  owner  of  two  houses  A  and  B,  both  of  which 
draw  their  supply  of  water  from  a  well  situated  in  the  curtilage 
of  .4,  conveys  away  ^  to  a  purchaser  without  any  mention  of 
the  right  to  draw  water  from  the  well  of  A,  the  right  will  never- 
theless pass  and  be  available  in  favour  of  the  possessors  of  B 
against  the  successive  possessors  of  A  ^.  So  if  a  man  grants  to 
another  a  piece  of  land  in  the  centre  of  and  surrounded  by  the 
grantor's  land,  he  by  implication  also  grants  a  right  of  way  over 
some  portion  of  the  land  which  he  retains.  And  of  course 
wherever  an  easement  or  profit  is  appurtenant  to  the  ownership 
of  any  pai'tieular  tenement,  such  easement  or  profit  will  pass 
upon  alienation  of  the  tenement  to  the  alienee  without  any 
special  grant  thereof. 

An  important  mode  of  acquiring  these  rights,  though  perhaps 
not  logically  coming  under  the  head  of  alienation,  must  not  be 

*  See  above.  Chap.  III.  §  17.  p.  128. 

*  See  Gale  on  Easements,  4th  ed.,  p.  86,  where  this  class  of  rights  is 
discussed  under  the  head  of  '  Disposition  of  the  Owner  of  two  Tenements  ;' 
called  by  French  writers  '  Destination  du  pfere  de  famille.' 


§  I.]  Prescription.  329 

omitted  here ;  that  is,  by  what  is  called  prescription,  or  actual 
use  and  enjoyment  of  the  right  for  a  specified  time.  Before  the 
passing  of  the  Prescription  Act  ^  this  mode  of  acquiring  rights 
in  alieno  solo  was  regarded  exclusively  as  a  species  of  title  by 
grant,  differing  only  fi'om  an  express  grant  in  the  evidence  by 
which  it  was  established.  If  it  be  proved  that  the  right  has 
been  in  fact  enjoyed  as  far  back  as  memory  can  trace  it,  and  no 
origin  of  the  right  be  shown,  the  presumption  is  that  it  has  been 
enjoyed  from  time  immemorial,  that  is,  from  some  period  anterior 
to  the  first  year  of  Richard  I,  the  time  at  which  legal  memory 
commences,  and  that  it  was  created  before  that  period  by  the 
owner  of  the  soil  ^  And  even  if  the  right  were  shown  to  have 
been  created  within  the  time  of  legal  memory,  juries  were 
directed,  when  the  right  was  in  question,  to  presume  that  as 
a  fact  the  right  had  been  expressly  granted  by  the  owner  of  the 
soil,  and  that  the  grant  had  been  lost.  This  mode  of  supporting 
rights  was  felt  to  be  most  unsatisfactory,  and  at  length  the  Pre- 
scription Act  ^  was  passed,  by  which  a  perfect  title  to  easements 
and  profits  is  confei'red  upon  persons  who  have  enjoyed  them 
as  of  right  for  certain  periods  of  time  specified  in  the  Act.  Its 
provisions  are  somewhat  complicated,  but  the  practical  effect  is 
that  the  enjoyment  of  an  easement,  as  for  instance  a  right  of 
way  or  of  the  access  of  light  and  air  through  a  window 
for  twenty  years,  and  the  enjoyment  of  a  profit  a  prendre, 
as  for  instance  a  right  of  common  for  thirty  years,  works  the 
acquisition  of  the  right  *.     The  enjoyment  must  be  by  a  person 

^  2  and  3  Will.  IV,  c.  71.     See  above,  p.  130. 

'■'  See  above,  p.  129  ;  and  Gale  on  Easements,  p.  146,  etc. 

*  2  and  3  Will.  IV,  c.  71.  The  Prescription  Act  does  not  do  away  with 
the  common  law  doctrine  of  prescription;  its  provisions  are  additions  to, 
and  do  not  supersede,  the  old  law. 

*  3  and  4  Will.  IV,  c.  71.  ss.  i,  2.  The  Act  provides  that  rights  enjoyed 
for  such  periods  respectively  shall  not  be  defeated  by  showing  only  that 
the  right  was  first  enjoyed  at  any  time  prior  to  such  period,  and  that  after 
the  easement  or  profit  had  been  enjoyed  for  forty  or  sixty  yeai's  respectively, 
the  right  should  be  absolute  and  indefeasible,  unless  it  were  proved  that 
it  was  enjoyed  by  some  agreement  in  writing. 


33°  Titles.  [chap.  x. 

claiming  right  thereto,  hence  it  may  be  defeated  by  showing  that 
it  has  been  enjoyed  avowedly  in  exercise  of  some  continuing 
permission  or  authority  of  the  owner  of  the  soil  ^. 

(5)  The  modes  in  which  creditors  acquire  rights  over  the 
lands  of  their  debtors  have  already  been  noticed  ^.  A  judgment- 
creditor,  that  is,  a  creditor  who  has  obtained  a  judgment  at  law 
against  his  debtor,  may,  as  has  been  seen,  sue  out  a  writ  of 
execution  called  an  elegit  *.  Till  recently  the  effect  of  a  judg- 
ment by  itself,  without  execution,  was  most  important  as  affect- 
ing the  interests  of  subsequent  purchasers  of  the  judgment- 
debtor's  lands.  By  a  recent  Act,  however,  the  land  of  the  debtor 
is  not  to  be  affected  by  any  judgment  against  him  until  it  has 
been  actually  delivered  in  execution  by  virtue  of  a  writ  of  elegit 
or  other  lawful  authority  *.  The  creditor  who  has  pursued  this 
remedy  may  cause  the  sheriff  to  execute  the  writ,  and  obtain 
possession  of  the  lands  at  his  hands,  which  entitles  him  to  enter 
and  take  possession  and  hold  till  the  debt  and  costs  be  satisfied. 
The  creditor  may  also,  after  due  registration  of  the  writ,  obtain 
an  order  from  a  Court  of  Equity  for  a  sale  of  the  lands  in  order 
to  satisfy  what  is  due  to  him  ^. 

The  nature  of  a  mortgage  has  been  already  described  ^.  A 
mortgagee  may  either  have  the  legal  estate  in  the  lands  vested 
in  him,  in  which  case  he  is  in  the  view  of  a  Court  of  Law  sole 
legal  owner,  or  he  may  have  only  an  equitable  estate.  The 
legal  estate  must  of  course  be  conveyed  to  him  by  one  of  the 
ordinary  modes  of  conveyance  applicable  to  freehold,  leasehold, 
or  copyhold  estates.  An  equitable  mortgage  may  be  created  by  a 
mere  agreement  in  writing,  or  even  without  writing  by  a  deposit 
of  the  title-deeds  by  the  legal  owner.     An  equitable  mortgagee 


^  See  Tickle  v.  Brown,  4  Adolphus  and  Ellis,  369. 

2  Chap.  V.  §  5. 

'  See  above,  p.  207. 

*  27  and  28  Vict.  c.  113.  s.  1. 

5  Ibid.  s.  4.  «  Cliap.  V.  §  5  (2). 


§  I.]  Alienation  infer  Vivos.  331 

must  of  course  resort  to  the  Court  of  Chancery  and  not  to  a 
Court  of  Law  to  assert  his  rights  ^ 

Passing  now  to  the  modes  of  acquiring  rights  of  ownership  or 
property  over  the  soil  in  the  sense  above  explained^,  the  most  con- 
venient classification  would  appear  to  be — modes  of  acquiring 
rights  of  ownership  at  common  law,  including  under  this  head  the 
modifications  in  detail  of  the  old  common  law  conveyances  by 
recent  Statutes ;  modes  of  acquiring  rights  of  ownership  under 
the  Statute  of  Uses  and  the  Statute  8  and  9  Vict.  c.  106;  and 
modes  of  acquiring  such  rights  in  equity. 

(6)  Modes  of  acquiring  rights  at  common  law  have  already 
been  explained,  and  need  here  only  be  enumerated.  The  mode 
of  acquisition  is  different  according  as  the  rights  acquired  are 
freehold,  leasehold,  or  copyhold. 

(7)  The  original  mode  of  acquiring  a  freehold  right  of  present 
enjoyment  at  common  law  is,  as  has  been  seen,  by  feoffment 
accompanied  by  livery  of  seisin,  the  requisites  of  which  have 
already  been  detailed  ^.  It  is  needless  however  to  say  that  this 
mode  of  conveyance,  though  still  legal,  is  in  practice  obsolete.  A 
feoffment  was  technically  confined  to  an  estate  in  fee  simple,  the 
conveyance  of  an  estate  tail  by  the  same  process  was  technically 
called  a  gift,  that  of  an  estate  for  life  a  lease. 

To  conveyances  of  freehold  lands  at  common  law  may  be 
added'  conveyances  by  way  of  exchange^.  An  exchange  is 
a  mutual  grant  of  equal  interests  in  lands,  the  one  in  con- 
sideration for  the  other.  Thus  A  may  exchange  his  estate  in  fee 
simple  of  Blackacre  with  B's  estate  in  fee  simple  of  Whiteacre. 
This  may  be  done  by  simple  deed  without  livery  of  seisin. 

Wliere  there  is  a  tenant  of  a  particular  estate  he  may  at 
common  law  surrender  his  estate  to  the  remainderman  or  rever- 
sioner by  simple  deed  without  livery  of  seisin.  In  the  case  of 
all  the  three  assurances  above  mentioned,  feoffment,  exchange. 


'  Williams  on  Real  Property,  p.  417.  *  See  p.  229. 

'  See  above,  Chap.  III.  §  11  (2). 
*  Blackstone,  ii.  323. 


^^2  Titles.  [chap.  x. 

and  surrender,  a  writing  signed  by  the  conveying  parties  or 
their  agents  was  made  necessary  by  the  Statute  of  Frauds  ^,  and 
the  Statute  8  and  9  Vict.  c.  106  requires  a  deed.  These 
assurances,  feoffment,  exchange,  and  surrender,  to  which  should 
be  added  partition,  which  has  been  already  mentioned^,  appear 
to  exhaust  the  possible  modes  of  dealing  with  a  freehold  estate 
in  possession  at  common  law. 

Freehold  rights  of  future  enjoyment,  though,  as  has  been  seen 
in  the  fifth  chapter  ^,  they  can  only  be  created  by  a  common  law 
conveyance  by  way  of  remainder,  are  habitually,  when  they  exist, 
conveyed  by  conveyances  operating  at  common  law.  For 
instance,  an  existing  reversion  or  remainder  can  be  conveyed  to 
a  stranger  by  grant,  or  to  the  tenant  of  the  particular  estate  by 
release.     Each  of  these  transactions  requires  a  deed. 

(8)  The  modes  of  creating  and  conveying  leasehold  interests 
have  already  been  discussed  *.  A  leasehold  interest  is  created 
by  a  demise  effected  by  appropriate  words,  the  usual  words 
being  '  demise,  lease,  and  to  farm  let,'  followed  by  the  entry  of 
the  lessee  on  the  demised  lands. 

In  the  case  of  all  leases  for  a  term  exceeding  three  years  from 
the  making  of  the  lease,  or  where  the  rent  does  not  amount  to 
two-thirds  of  the  full  improved  value  of  the  land,  the  words  of 
demise  to  be  effectual  must,  by  the  provisions  of  the  Statute  of 
Frauds,  be  in  writing  ^.  And  by  the  Statute  8  and  9  Vict.  cap. 
106.  s.  3,  whenever  a  lease  is  required  by  law  to  be  in  writing 
it  shall  be  void  at  law  unless  made  by  deed.  The  Court 
of  Chancery  however  upholds  mere  agreements  for  leases  by 
decreeing,  if  need  be,  that  a  formal  lease  should  be  executed  ^. 

If  the  formalities  required  by  the  Statute  of  Frauds  and  8  and 
9  Vict.  c.    106  are  not   observed,  the  tenancy  created  by  the 

^  29  Car.  II.  c.  3.  *  See  above,  p.  204.  ^  §  3- 

*  See  above,  Chap.  V.  §  i. 

^  29  Car.  II.  c.  3.  ss.  i,  1. 

^  It  should  be  borne  in  mind  that  an  agreement  for  a  lease,  being  an 
interest  in  lands,  is  required  by  the  Statute  of  Frauds  (29  Car.  II.  c.  3.  s.  4) 
to  be  in  writing. 


§  1.]  Alienation  inter  Vivos.  333 

demise  and  entry  will  be  a  tenancy  at  will.  Tenancies  from  year 
to  year,  by  the  half-year,  quarter,  etc.,  are,  as  has  been  shown  \ 
modifications  of  tenancies  at  will.  The  interest  of  the  tenant  at 
will  can  only  be  terminated  in  such  cases  by  proper  notice  ex- 
piring at  the  end  of  the  year  of  the  tenancy,  or  at  such  other 
periods  as  may  be  contemplated  by  the  parties.  The  other 
terms  of  the  tenancy  may  be  proved  by  parol  or  verbal  evidence 
without  writing.  Thus  a  verbal  agreement  creating  a  tenancy 
for  ten  years,  with  elaborate  provisions  as  to  mode  of  cultivation, 
rights  of  lessor  and  lessee  at  the  end  of  such  term,  and  such-like, 
followed  by  entry  of  the  lessee  and  payment  of  rent,  will  create 
a  tenancy  from  year  to  year  upon  the  terms  specified,  and 
similar  terms  may  without  any  actual  or  express  agreement  be 
implied  by  the  custom  of  the  country. 

Thus  much  for  the  mode  of  creation  of  leasehold  interests. 
The  term  ^  when  created  can  be  alienated  by  the  lessee  like  any 
other  right  of  property.  He  can  do  this  either  by  way  of 
underlease  or  assignment.  An  underlease  is  where  a  lessee 
makes  a  lease  for  a  shorter  term  than  he  himself  holds,  leaving 
thereby  a  reversion,  of  however  short  a  dm-ation,  in  himself.  In 
its  legal  attributes  an  underlease  in  no  way  differs  from  a  lease. 

The  grant  of  the  whole  term  by  the  lessee  is  called  an  assign- 
ment. The  Statute  of  Frauds  required  such  assignments  to 
be  in  writing '.  The  Act  to  amend  the  Law  of  Real  Property 
renders  a  deed  necessary  for  the  completion  of  the  legal  title  *. 
The  assignee  of  the  lease  has  the  same  interest  as  the  lessee 
(his  assignor).  This  extends  even  to  the  binding  of  the  assignee 
to  the  lessor  by  some  of  the  covenants  relating  to  the  land  into 
which  the  lessee  may  have  entered.  As,  for  instance,  a  covenant 
by  the  lessee  to  pay  the  rent  or  to  repair  the  demised  premises 


*  See  above,  p.  171. 

*  It  should  be  observed  that  the  word  '  term '  applies  not  to  the  period 
of  time,  but  to  the  interest  itself.  The  '  term  '  may  come  to  an  end  before 
the  period  for  which  the  lease  has  been  granted  has  expired. 

3  Sect.  3. 

*  8  and  9  Vict,  c.  106.  s.  3. 


334  Titles.  [chap.  x. 

will  bind  his  assignee.  The  assignee  succeeds  therefore  not  only  to 
his  assignor's  rights  in  rem,  but  to  some  of  his  rights  and  duties 
in  personam,.  Of  course  every  covenant  entered  into  between 
the  lessor  and  original  lessee  which  does  not  '  touch  and  concern' 
the  thing  demised,  or  in  other  words,  which  does  not  appertain 
as  an  ordinary  and  natural  incident  to  the  relation  of  lessor  and 
lessee,  does  not  upon  the  assignment  cast  any  burden  or  duty 
on  the  assignee  towards,  or  confer  any  right  upon  him  against, 
the  original  lessor.  It  is  often  a  difficult  question  whether  or 
not  a  covenant  is  so  connected  with  the  land  as  to  run  with  it, 
i.e.  bind  each  successive  assignee  of  the  land. 

In  like  manner  as  the  burden  and  the  benefit  of  covenants 
relating  to  lands  entered  into  by  the  lessee  extend  to  the 
assignee  of  the  term,  so  do  the  burden  and  the  benefit  of  such 
covenants  extend  to  the  assignee  (or  grantee)  of  the  reversion. 
Whether  or  not  the  assignee  of  the  reversion  could  take  ad- 
vantage of  or  was  bound  by  covenants  running  with  the  land 
as  between  himself  and  the  lessee,  or  assignee  of  lessee, 
seems  to  have  been  a  doubtful  point  until  it  was  settled  by 
a  Statute  of  Henry  VIII  ^.  Upon  the  dissolution  of  the  monas- 
teries there  were  many  long  leases  subsisting  of  ecclesiastical 
lands.  In  order  to  j^lace  the  grantees  of  the  confiscated  land  in 
the  same  advantageous  position  as  the  ecclesiastical  bodies  by 
whom  the  leases  had  been  made,  it  was  necessary  to  provide 
that  the  assignee  of  the  reversion  should  be  enabled  to  take 
advantage  of  and  should  be  bound  by  the  covenants  entered  into 
by  the  lessor  under  whom  he  claims  ^. 

Leasehold  interests  are  frequently  terminated  by  an  application 
of  the  doctrine  of  conditions  noticed  above  *.  A  lease  usually 
contains  a  proviso  for  re-entry  by  the  lessor  in  the  event  of  the 


^  32  Henry  VIII.  c.  34. 

*  Though  the  words  of  the  enactment  are  general,  the  Courts  have  con- 
fined its  provisions  to  covenants  which  touch  and  concern  the  tiling 
demised.  See  on  the  subject  of  covenants  running  with  the  land,  Spencer's 
case,  in  i  Smith's  Leading  Cases,  5th  ed.,  p.  43. 

2  See  p.  190. 


§  I.]  Alienation  inter  Vivos.  335 

breach  of  any  of  the  covenants  entered  into  by  the  lessee,  and 
also  in  certain  other  events,  as  for  instance  his  bankruptcy. 
This  entitles  the  lessor  on  the  happening  of  the  specified  event 
to  enter,  or  to  bring  an  action  of  ejectment,  and  so  terminate  the 
lease.  If  however  the  lessor,  after  knowledge  of  the  happening 
of  the  event,  continues  in  any  way  to  treat  the  lessee  as  his 
tenant,  as  for  instance  by  receipt  of  rent  accruing  after  the  for- 
feiture, he  is  said  to  waive  the  forfeiture,  and  can  no  longer  take 
advantage  of  it.  A  lease  may  of  course  be  made  terminable  in 
certain  events,  on  the  happening  of  which  the  lessor  has  a  right 
to  re-enter  without  any  express  proviso  for  re-entry.  Such  a 
proviso  is  however  usually  inserted. 

(9)  Modes  of  acquiring  rights  of  the  character  of  copyhold 
have  already  been  dealt  with.  Except  where  the  modern  Statutes 
have  altered  in  detail  some  of  the  solemnities  requisite  for  the 
passing  of  copyhold  lands,  the  general  mode  of  alienating  copy- 
hold lands  is  by  surrender  and  admittance  operating  at  common 
law^ 

(10)  Passing  now  from  the  modes  of  alienation  which  rest 
vipon  the  common  law,  it  is  convenient  to  arrange  in  a  distinct 
class  modes  of  alienation  operating  under  the  Statute  of  Uses 
and  under  the  Act  to  amend  the  Law  of  Real  Property. 
This  will  in  fact  comprise  the  whole  body  of  conveyances  in 
use  at  the  present  day.  No  simple  alienation  of  an  estate 
of  freehold  or  settlement  of  lands  is  ever  framed  which  does 
not  owe  its  operation  to  the  enactments  of  one  or  both  of 
these  Statutes.  The  opei^ation  of  the  Statute  of  Uses  upon  a 
feoffment  to  uses,  bargain  and  sale,  and  covenant  to  stand 
seised,  has  already  been  sufficiently  discussed  in  the  seventh 
chapter.  The  pi-actical  application  of  the  Statute  combined  with 
the  common  law  conveyance  of  a  release  has  been  explained, 
and  it  has  been  seen  how  the  long  prevalence  of  the  mode  of 
conveyance  by  lease  and  release  has  at  length  been  superseded 
by   the   provisions   of  the  Act   to   amend   the   Law   of  Real 

'  See  above,  Chap.  V.  §  6.  pp.  220,  221. 


33^  Titles.  [chap.  x. 

Property.  That  Statute  abolished  the  ancient  principle  that  free- 
hold estates  in  possession  could  only  be  conveyed  from  one 
person  to  another  by  livery  of  seisin,  and  enacted  that  '  all  cor- 
poreal hereditaments  shall,  as  regards  the  conveyance  of  the 
immediate  freehold  thereof,  be  deemed  to  lie  in  grant  as  well  as 
in  livery  ^.'  The  effect  of  this  Statute  therefore  is  to  enable  an 
effectual  conveyance  of  a  freehold  estate  in  possession  to  be  made 
by  the  operation  of  a  simple  deed  containing  words  expi-essing 
a  grant  from  the  grantor  to  the  grantee  ^.  This  enactment 
does  not  in  any  way  supersede  the  action  of  the  Statute  of  Uses, 
and  uses  consequently  may  be  and  constantly  are  created  by 
proper  expressions  in  these  deeds  of  statutory  grant '. 

(ii)  The  creation  and  disposition  of  rights  in  Equity  have 
also  been  dealt  with  *.  It  has  been  seen  that  these  interests  are 
created  either  by  express  words,  that  is,  by  the  use  of  words 
in  a  conveyance  operating  to  pass  the  estate  at  common  law  and 
creating  a  second  use  or  trust  not  executed  by  the  Statute,  or  by 
words  imposing  some  active  duty  upon  the  alienee  at  common 
law ;  or  secondly,  they  may  be  created  by  implication,  as  upon 
a  conveyance  without  consideration,  in  which  case  a  resulting 
trust  maybe  implied,  or  upon  an  agreement  for  the  sale  of  lands 
uncompleted  by  conveyance  and  payment  by  the  purchaser  of 
the  purchase  money,  in  which  case  the  vendor  or  legal  owner 
becomes  trustee  for  the  purchaser. 

For  the  conveyance  and  assignment  of  these  equitable  in- 
terests the  only  necessary  solemnity  is  the  writing  required  by 
the  Statute  of  Frauds,  though  in  practice  it  is  usual  to  employ  a 
deed. 

^  8  &  9  Vict.  c.  io6.  s.  2. 

^  See  the  specimen  of  a  modem  grant  of  an  estate  in  fee  in  Williams  on 
Real  Property,  p.  1 84,  where  the  operative  words  are — '  he  the  said  A  B 
doth  hereby  grant  unto  the  said  CD  and  his  heirs  all  that  messuage  etc., 
to  have  and  to  hold  unto  and  to  the  use  of  the  said  C  D  his  heirs  and 
assigns  for  ever.' 

^  This  is  the  case  for  instance  in  every  marriage  settlement  of  real  estate. 
See  above,  p.  280. 

*  See  above,  Chap,  Vli.  §  4. 


§  2.]  Succession.  337 

(12)  To  pass  now  from  alienation  inter  vivos  to  alienation  by 
will.  A  will  of  lands  operates  on  different  principles  according 
as  the  interest  to  be  conveyed  is  freehold,  leasehold,  or  copyhold. 

(13)  In  regard  to  freehold  lands  the  requisites  of  a  valid  will 
have  already  been  detailed.  AVhen  a  will  has  been  validly 
executed  and  remains  in  force  at  the  death  of  the  devisor,  it 
operates  immediately  upon  that  event  to  convey  the  freehold 
lands  comprised  in  the  devise  to  the  devisee.  Though  no  act 
of  acceptance  or  assent  is  necessary  on  the  part  of  the  devisee, 
yet  if  before  acceptance  by  entering  on  the  lands  the  devisee  by 
an  express  act  waives  the  devise,  no  estate  will  pass  to  him  by 
the  will  \ 

(14)  It  should  be  observed  that  the  operation  of  a  will  with 
regaled  to  leasehold  interests  or  chattels  real  is  wholly  different 
from  its  operation  with  regard  to  freeholds.  .  For  reasons 
already  explained,  leasehold  interests  are  regarded  as  personal 
property  ^.  The  whole  of  a  man's  personal  property  is  cast  by  the 
will  upon  his  executors,  and  the  legatees  take  their  gifts  through 
the  medium  of  the  executors.  If  therefore  A  devises  all  his 
estate  real  and  personal  to  B,  the  freehold  lands  will  vest  in  B 
immediately  on  A's  death,  the  leaseholds  not  until  he  has 
obtained  the  assent  of  the  executors. 

(15)  The  mode  of  devise  applicable  to  copyholds  has  already 
been  noticed  ^ 

§  2.   Title  hy  Succession. 

The  second  of  the  principal  classes  under  which  Titles  may 
be  divided  is  Succession  or  devolution  ah  intestato.  Here  again 
the  rules  governing  succession  to  interests  in  lands  are  different 
in  the  case  of  succession  to  freehold,  leasehold,  and  copyhold 
interests. 


•  See  Townson  v.  Tickell,  3  Barnewall  and  Alderson's  Reports,  p.  31. 
»  Chap.  III.  §  16;  V.  §  I. 
^  See  above,  pp.  221,'  311. 


338  Titles.  [chap.  X. 

(i)  Descent  of  an  estate  of  inheritance  in  fee  simple  in  free- 
holds. The  old  rules  as  to  title  by  descent^  were  in  some 
important  points  modified  and  recast  by  the  Act  for  the 
Amendment  of  the  Law  of  Inheritance^,  which  applies  to 
descent  on  the  death  of  any  person  subsequently  to  December  31, 
1833.  The  main  features  of  the  existing  law  and  the  points 
in  which  the  law  was  changed  by  the  above-mentioned  Statute 
will  now  be  briefly  noticed. 

Upon  the  death  of  a  tenant  in  fee  simple  the  lands  descend 
to  his  'heir^.'  In  ascertaining  who  the  'heir'  is,  the  first 
question  is,  from  whom  is  the  descent  to  be  traced  %  Formerly 
the  rule  was  that  the  descent  was  to  be  traced  from  the  person 
last  actually  seised.  Thus  suppose  A,  tenant  in  fee  simple,  has  a 
son  B  and  a  daughter  C  by  a  first  wife,  and  a  son  i)  by  a  second 
wife,  and  dies  intestate,  leaving  B,  C,  and  D  surviving,  if  B 
entered  and  was  seised  of  the  lands,  he  thereby  became  a  fresli 
stock  of  descent,  and  on  his  death,  intestate,  the  land  descended 
to  his  sister  G  to  the  exclusion  of  D  his  half-brother,  the  old  rule 
beinf  that  there  could  be  no  descent  to  any  one  who  was  not  of 
the  whole  blood  of  the  person  last  seised  *.  On  the  other  hand, 
if  B,  though  he  had  survived  A,  had  never  entered  or  become 
seised  of  the  lands,  the  lands  would  at  Fs  death  have  descended 
to  D,  for  he  being  a  son  would  be  the  heir  of  the  person  last 
'  seised,  his  father,  in  preference  to  his  half-sister.  The  first  of 
the  above  cases  is  that  to  which  the  old  maxim  '  possessio  fratris 
facit  sororem  esse  haeredem'  applies.  It  thus  became  an  im- 
portant question,  under  the  old  law,  whether  the  person  last 
entitled  had  ever  obtained  actual  seisin.     The  Inheritance  Act 

1  See  above,  Chap.  II.  §  5.  ^  3  ^nd  4  Will.  IV.  c.  106. 

^  The  word  'heir'  in  English  law  has  a  sense  far  more  limited  than  the 
word  '  haeres '  in  Roman  law.  The  '  heir '  is  the  person  on  whom  the  real 
estate  of  a  deceased  intestate  devolves.  He  is  opposed  to  the  devisee  who 
is  the  person  to  whom  real  property  is  left  by  will,  and  to  the  executor  or 
administrator  who  succeeds  to  the  personal  estate.  In  Roman  law  the 
'  haeres'  is  the  universal  successor  to  the  deceased,  whether  ab  iiitestato  or 
ex  testamento. 

*  See  below,  p.  341. 


§  2  (i).]  Succession.  339 

1833,  has  altered  the  law  in  this  respect,  by  providing  that  ' 
descent  in  every  case  shall  be  traced  to  the  last  purchaser,  that 
is  to  say,  to  the  person  '  who  last  acquired  the  land  otherwise 
than  by  descent '.'  For  example,  in  the  case  above  given,  it 
would  be  immaterial  under  the  present  law  whether  or  not  B 
ever  became  seised  of  the  lands.  The  important  question  after 
the  deaths  of  A  and  B  would  be,  not  who  was  heir  to  B,  but 
who  was  heir  to  A  (assuming  him  to  have  been  the  last 
purchaser).  In  the  event  of  a  total  failure  of  the  heirs  of  the 
purchaser,  but  not  of  the  person  last  entitled  to  the  land,  it  is 
provided  by  a  later  Statute,  that  in  such  a  case  the  lands  should 
descend  to  the  heir  of  the  person  last  entitled  ^.  For  instance, 
A,  a  bastard,  purchases  lands  and  dies  intestate,  whereupon  the 
lands  descend  to  his  only  child  B.  Upon  B's  death  intestate 
the  lands  would,  but  for  the  last-mentioned  Act,  have  escheated. 
Since  that  Statute  they  will  descend  to  the  heir  of  B. 

Starting  then  with  the  last  purchaser  as  the  stock  of  descent, 
the  heir  of  the  purchaser  is  first  to  be  looked  for  in  his  own 
offspring,  and,  according  to  the  well-known  rule  of  primo- 
geniture, will  be  found  in  the  first  instance   in  the  eldest  of 

*  3  and  4  "Will.  IV,  c.  106.  s.  i.  By  this  section  the  person  last  entitled 
to  the  land  shall  be  deemed  the  purchaser  unless  it  shall  be  proved  that  he 
inherited  it.  The  Real  Property  Commissioners  (ist  Report,  p.  16)  pro- 
posed that  the  person  last  entitled  should  be  the  stock  of  descent.  The 
existing  rule  appears  to  have  been  adopted  by  the  legislature  in  conformity 
with  the  authorities,  especially  Sir  E.  Coke.  '  And  note  that  it  is  an 
old  and  true  maxim  in  law,  that  none  shall  inherit  any  lands  as  heir 
but  only  the  blood  of  the  first  purchaser.'  Coke  upon  Littleton,  12  a.  This 
rule,  however,  does  not  appear  in  Glanvill ;  see  above.  Chap.  II.  §  5  :  and 
Bracton,  fol.  65  b,  uses  language  which  seems  to  be  inconsistent  with  it, 
laying  it  down  that  a  person  on  becoming  seised  makes  a  stipes  or  new 
stock  of  descent.  Hence  the  maxim  '  seisina  facit  stipitem.'  Blackstone's 
explanation  of  this  rule  of  law,  as  well  as  his  more  elaborate  explanation  of 
the  exclusion  of  the  half-blood  (see  below),  is  based  on  the  supposed  strictly 
hereditary  character  of  a  feud,  which  Blackstone  asserts  was  originally 
descendible  only  to  the  issue  of  the  purchaser.  This,  however,  does  not 
appear  to  have  ever  been  law  in  this  country  in  the  case  of  a  gift  to  a 
man  and  his  heirs. 

*  22  and  23  Vict.  c.  35.  s.  19. 

Z  2 


340  Titles.  [chap.  x. 

the  purchaser's  sons.  Stated  generally,  the  mle  is  that,  amongst 
persons  of  equal  degree  in  relation  to  the  purchaser,  males  are 
entitled  one  after  another  in  the  order  of  their  birth,  females 
take  together  as  coparceners  ^. 

But  before  a  younger  brother  or  daughters  can  claim  as  heir 
to  the  last  purchaser  in  consequence  of  the  decease  of  a  brother 
who  would  have  been  entitled  to  succeed,  it  must  be  ascertained 
that  the  elder  or  only  brother  has  left  no  lawful  descendants. 
For  it  is  an  invariable  rule  that  such  children  stand  in  the  place 
of  and  succeed  to  the  rights  which  their  parent  would  have  had, 
if  they  had  survived  the  purchaser.  Thus  if  A  is  the  purchaser 
and  has  two  sons  B,  the  elder,  and  (7,  B  has  a  son  J)  who  has 
issue  two  daughters  E  and  F,  B  and  D  predecease  A,  upon 
the  death  of  A  intestate  the  lands  descend  to  his  great-grand- 
daughters to  the  exclusion  of  his  son  C. 

If  the  purchaser  at  his  decease  leaves  no  children  or 
descendants  surviving  him,  the  lands  will  go  to  his  nearest 
male  lineal  ancestor,  the  paternal  line  being  preferred  to  the 
maternal  ^. 

This  i-ule  was  newly  introduced  by  the  Inheritance  Act.  By 
a  strange  anomaly  in  our  law,  of  which  no  satisfactory  explana- 
tion appears  to  have  been  given,  the  lineal  ancestor  was  formerly 
excluded  from  the  succession,  though  the  uncle  or  aunt  was  not  ^. 

*  As  to  coparceners  see  above,  Chap.  V.  §  4.  See  for  a  discussion  of  the 
proper  rule  in  the  case  where  A  purchases  lands  and  dies  intestate  leaving 
two  daughters  B  and  C,  and  B  afterwards  dies  intestate  leaving  a  son  D, 
Williams  on  Real  Property,  Appendix  B. 

^  3  and  4  Will.  IV,  c.  106.  ss.  6,  7. 

^  The  elaborate  explanation  given  by  Blackstone,  ii.  pp.  211,  212,  re- 
ferring the  rule  to  feudal  principles,  and  to  the  supposed  rule  that  a 
feudum  novum  or  newly-granted  feud  could  only  descend  to  the  lineal 
descendants  of  the  feoffee  (see  ib.  p.  222),  appears  to  be  inconsistent  with 
the  early  English  authorities,  which  do  not  mention  any  such  fiction  as 
Blackstone  supposes  to  be  necessary  to  explain  collateral  succession.  I  am 
disposed  to  think  it  more  probable  that  the  rule  really  results  from  the 
associations  involved  in  the  word  '  descent,'  and  that  the  rule  'an  inheritance 
may  lineally  descend  but  not  ascend '  (Littleton,  sect.  3)  was  supposed  to  be 
part  of  the  law  of  nature.     Compare  Bracton,  fol.  62b:'  Descendit  itaque 


§  2.]  Succession.  341 

If  such  ancestor  has  predeceased  the  purchaser,  his  issue  will 
represent  him  in  the  same  order,  and  subject  to  the  same  rules 
(with  one  exception)  as  have  been  already  stated  with  regard  to 
the  issue  of  the  purchaser. 

Formerly,  on  the  death  of  a  tenant  in  fee  intestate  and  with- 
out issue,  the  father  being  excluded,  the  lands  descended  at  once 
to  the  next  brother,  or,  if  no  brother,  to  the  sisters.  Now  the 
brother  or  sisters  succeed  as  representing  the  father  of  the 
purchaser,  the  uncles,  aunts,  and  first  cousins  as  rejiresenting  the 
gi-andfather,  and  remoter  collaterals  as  I'epresenting  the  common 
ancestor  ■^. 

In  collateral  descent  the  principle  of  simple  representation 
according  to  the  rules  governing  the  descent  to  the  purchaser's 
lineal  descendants  is,  as  has  been  said,  subject  to  one  exception. 
There  was  an  unreasonable  rule  under  the  older  law  which 
excluded  entirely  persons  of  the  half-blood  of  the  person  last 
seised  from  the  succession ".  Thus,  to  refer  to  the  instance  given 
above,  if  A  died,  leaving  B  a  son  and  C  a  daughter  by  a  first 
wife  and  D  a  son  by  a  second  wife,  and  B  became  actually  seised 
of  the  lands  and  died,  the  lands  would  descend  to  C  the  sister  and 
not  to  D.  Again,  if  G  became  seised  and  died  intestate,  D 
could  not  be  her  heir,  and  if  she  left  no  relation  of  the  whole 
blood  the  lands  wovild  escheat  to  the  lord.  By  the  change 
effected  by  the  Inheritance  Act,  the  half-blood,  if  descended  from 


jus,  quasi  ponderosum  quid  cadens  deorsum,  recta  linea  vel  transversali,  et 
numquam  reasccndit  ea  via  qua  descendit.' 

»  See  3  and  4  Will.  IV,  c.  105.  s.  5. 

*  The  rule  as  laid  down  by  Bracton  (65)  appears  to  be  of  a  much  more 
limited  character.  Where  a  man  leaves  issue  by  two  wHves,  A  a  son  and 
B  a  daughter  by  the  first  and  C  a  son  by  the  second,  and  A  purchases 
lands  and  dies  intestate,  the  lands  descend  to  B  in  preference  to  C  Bracton 
mentions  that  it  was  a  disputed  question  whether  the  same  rule  applied  when 
the  lands  had  descended  from  the  coumion  father.  In  that  case  he  seems 
to  think  the  lands  ought  to  descend  from  the  eldest  son  to  the  younger 
brother  of  the  half-blood  to  the  exclusion  of  the  sister.  Blackstone's 
explanation  of  the  exclusion  of  the  half-blood  is  probably  the  most  unsatis- 
factory passage  in  his  book;  ii.  pp.  228,  232. 


343  Titles.  [chap,  x. 

a  common  male  ancestor,  is  to  take  next  after  any  relation  in 
the  same  degree  of  the  whole  blood.  Thus,  in  the  instance 
above  given,  assuming  B  to  be  the  last  purchaser,  D  will  take 
next  after  his  sister  C.  If  the  common  ancestor  is  a  female  the 
half-blood  will  take  next  after  the  common  ancestor  \ 

If  there  are  no  male  ancestors  of  the  last  purchaser  or  repre- 
sentatives of  such  ancestors  surviving  at  the  time  of  his  decease, 
the  lands  will  in  the  next  instance  go  to  the  female  paternal 
ancestors  of  the  purchaser.  In  this  case  the  rule  is  that  the 
mother  of  his  more  remote  male  paternal  ancestor  and  her 
descendants  are  to  be  preferred  to  the  mother  of  a  less  remote 
male  paternal  ancestor  or  her  descendants^.  It  is  difficult  to 
see  on  what  principle  such  a  remote  relation  as  might  be  em- 
braced under  this  rule  should  be  preferred  to  the  purchaser's 
mother,  but  such  is  the  law. 

It  is  only  after  the  failure  of  the  paternal  line  of  ancestors, 
both  male  and  female,  and  their  descendants,  that  the  mother 
succeeds.  After  the  mother  come  her  descendants  by  another 
husband  if  any,  and  then  her  father  and  the  line  of  male 
maternal  ancestors  of  the  purchaser  and  their  descendants, 
according  to  the  principles  above  stated  ;  and  last  of  all  the  line 
of  female  maternal  ancestors  and  their  descendants,  who  succeed 
according  to  the  same  rule  as  relates  to  female  paternal 
ancestors  ^. 

There  are  some  cases  of  descent  by  particular  customs  of  free- 
hold lands  where  the  old  Anglo-Saxon  rules  still  prevail.  The 
most  important  of  these  are  in  the  tenures  called  gavelkind 
and  borough  English,  which  have  already  been  noticed  *. 

(2)  The  succession  to  leasehold  interests  or  chattels  real  rests 
on  a  wholly  different  ground.  Here  the  fundamental  distinction 
between  real  and  personal  property  becomes  important.  On  the 
death  of  a  person  entitled  to  a  term  of  years  in  lands,  the 
property  devolves  upon  the  administrator,  or  person  appointed 
by  the  Court  of  Probate  to  administer  the  personal  estate  of  the 

1  3  and  4  Will.  IV,  c.  106.  s.  9.  ^  Sect.  8. 

s  Sect.  8,  *  See  above,  pp.  38,  39. 


§  3-]  Miscellaneous. 


343 


intestate'.  The  admiuistrator,  after  payment  of  the  debts  of 
the  deceased,  must  distribute  the  personal  property,  including 
chattels  real,  according  to  the  provisions  of  the  Statute  of 
Distributions  ^. 

(3)  Descent  in  the  case  of  copyhold  lauds  is  regulated  by  the 
particular  custom  of  the  manor  in  which  the  lands  are  situate*. 
These  may  or  may  not  follow  the  rules  relating  to  freehold 
lands ;  and  in  order  to  ascertain  the  custom  recourse  must  be 
had  to  the  proper  evidence,  which  is,  primarily,  the  court  rolls 
of  the  manor. 

§  3.  Miscellaneous  Titles. 
(i)  Escheat. 

If  in  the  case  of  freehold  lands  there  is  a  total  failure  of 
heirs  on  the  death  of  the  tenant,  the  land  escheats  to  the 
lord.  The  theory  of  title  by  escheat  is  that  the  whole  pro- 
perty in  the  land  being,  as  has  been  said,  divided  between  the 
lords  (paramount  and  mesne)  and  the  tenant,  on  the  tenant 
failing  to  have  any  heirs  to  whom  the  lands  can  descend,  there  is 
a  species  of  reversion  to  the  next  lord.  His  right  over  the  land 
becomes  as  it  were  enlarged  by  the  failure  of  the  tenants  in 
possession.  But  this  title  must  be  completed  by  entry  on  the 
land,  or  otherwise  asserting  his  right  ^. 

If,  as  is  usually  the  case  at  the  present  day,  there  is  no  known 
mesne  lord  of  whom  the  land  is  held,  the  land  escheats  to  the 
sovereign  as  lord  paramount.     The  practice  is  for  the  Crown  to 

'  Under  the  provisions  of  20  and  21  Vict.  c.  77. 

^22  and  23  Car.  II,  c.  lo. 

■*  See  above.  Chap.  V.  §  6.  How  far  the  provisions  of  tlie  Inheritance 
Act  apply  to  copyhold  or  customary  tenures  is  a  matter  somewhat  dis- 
puted. The  term  '  land '  is  expressly  interpreted  to  cover  these  tenures 
but  the  Courts  of  Exchequer  and  Exchequer  Chamber  have  held  that  they 
do  not  affect  a  custom  to  trace  descent  to  tiie  person  last  seised.  Muco-le- 
ton  V.  Barnett,  i  Hurlstone  and  Norman,  282  ;  2  ib.  653  ;  and"  see 
Williams  on  Real  Property,  Appendi.K  A. 

*  Blackstone,  ii.  p.  245.     This  necessity  for  the  lord  to  do  some  act  on 
his  part  induced  Blackstone  to  class  escheat  under  title  by  purchase. 


344  Titles.  [chap.  x. 

institute  an  '  inquest  of  office,'  usually  before  commissioners 
appointed  for  the  purpose,  for  the  purpose  of  determining  whether 
the  tenant  died  without  leaving  an  heir.  On  the  verdict  of  the 
jury  to  this  effect  the  Crown  becomes  seised  of  the  land  without 
the  necessity  of  entry  ^. 

Escheat  formerly  took  place  upon  the  blood  of  the  tenant 
being  attainted.  Here  again  we  have  a  specimen  of  the  practice 
of  treating  metaphorical  expressions  as  if  they  were  realities, 
which  has  been  found  to  be  so  common  amongst  lawyers. 
Attainder  took  place  upon  judgment  of  death  or  outlawry  being 
passed  after  conviction  for  treason  or  felony^.  The  effect  of 
attainder  was,  as  is  said,  to  corrupt  the  blood  so  as  to  render  it 
no  longer  inheritable.  The  effect  was  the  same  therefore  as  if 
the  tenant  had  died  without  heirs ;  the  land  at  once  escheated 
to  the  lord.  This  escheat  was  however  subject  to  the  para- 
mount right  of  the  Crown,  based  on  other  than  feudal  principles, 
to  forfeiture  of  the  land,  in  the  case  of  conviction  for  treason 
for  ever,  in  the  case  of  conviction  for  felony  for  a  year  and 
a  day. 

Th^  notion  of  corruption  of  blood  consequent  on  attainder  was 
pushed  still  further.  Not  only  did  it  apply  to  lands  in  the  pos- 
session of  the  criminal  at  the  time,  but  it  extended  also  to  land 
to  which  he  might  afterwards  become  entitled.  Thus  if  A  were 
seised  in  fee,  and  B  his  eldest  son  were  convicted  of  treason  in 
A's  lifetime  having  a  son  C,  upon  A's  death  intestate  the  land 
escheated  to  the  lord,  whether  B  were  dead  or  not :  if  he  were 
alive,  because  his  blood  being  attainted  he  could  not  inherit ;  if 
he  were  dead,  because  C  could  not  make  title  through  him  ^ 

Such  was  formerly  the  law  with  reference  to  escheat  propter 
delictum  tenentis.     After  considerable  modifications  by  statute  of 

'  Elackstone,  iii.  p.  260. 

*  Blackstone,  iv.  pp.  383-387. 

^  Blackstone,  ii.  p.  254,  says,  'The  channel  which  conveyed  the  hereditary 
blood  from  liis  ancestors  to  him  is  not  only  exhausted  for  the  present,  but 
totally  dammed  up  and  rendered  impervious  for  the  future.'  This  effect  of 
attainder  was  abolished  by  the  Inheritance  Act,  3  and  4  Will.  IV,  c.  ic6. 
s.  10. 


§  3.]  Mlscelhneous.  345 

the  doctrine  of  attainder*,  the  recent  Statute  33  and  34  Vict, 
c.  23  has  totally  abolished  forfeiture  and  escheat  (except  when 
forfeiture  is  consequent  upon  outlawry),  and  provides  instead  for 
the  appointment  of  an  administrator  to  the  property  of  the 
convict,  and  for  the  vesting  of  his  property  in  such  administrator 
during  the  continuance  of  his  punishment. 

(2)  Loss  and  Acquisition  by  Lapse  of  Time. 

The  mode  of  acquisition  by  presci'iption  of  the  class  of  rights 
over  land  which  are  styled  above  '  rights  in  alieno  solo'  has 
already  been  noticed.  In  the  case  of  rights  of  ownership  occu- 
pation without  title  for  a  certain  period  has  an  operation  some- 
what different  in  point  of  law.  •  The  theory  of  English  law  is 
that  if  a  person  entitled  to  a  legal  remedy  against  a  wrong-doer 
does  not  pursue  that  remedy  within  a  certain  time  after  he  has 
first  had  the  opportunity  of  doing  so,  his  right  to  pursue  the 
remedy  at  all  is  extinguished  ^.  If  therefore  a  person  occupies 
land  without  any  right,  and  the  true  owner  or  his  successors 
in  title  allow  twenty  years  ^  to  elapse  since  the  last  time  Avhen 
such  owner  or  some  person  through  whom  he  claims  was 
in  possession  or  receipt  of  the  profits  of  the  land,  or  of  the 
rent,  without  taking  effectual  steps,  by  action  or  re-entry,  to  re- 
cover the  land,  the  right  to  take  such  steps  either  by  way  of 
action  or  re-entry  as  against  the  occupant,  or  any  person  claim- 
ing through  him,  is  extinguished.  This  rule  is  subject  to 
exception  in  the  case  of  persons  who  are  disabled  from  taking 
the  proper  steps  to  assert  their  right,  arising  from  infancy, 
coverture,  lunac)',  or  absence  beyond  seas  *.     Such  persons,  o)- 

'  Especially  by  54  Geo.  Ill,  c.  145. 

^  See  for  the  older  law,  Blackstoue,  iii.  pp.  178,  188,  192,  196. 

3  See  3  and  4  Will.  IV,  c.  27.  s.  2.  This  is  the  Statute  of  Limitations  at 
present  in  farce  with  regard  to  the  rights  over  land  called  corporeal  heredi- 
taments (see  above,  p.  229,  n.  4)  and  rents.  This  Statute  does  not  apply  to  the 
lands  of  the  Crown  or  of  the  Duchy  of  Cornwall.  The  period  of  limitation 
with  regai-d  U)  such  lands  is  sixty  years.  9  Geo.  Ill,  c.  16;  23  and  24 
Vict.  c.  53  ;   24  and  25  Vict.  e.  62. 

*  3  and  4  Will.  IV,  c.  27.  ss.  16,  18,  19. 


34'5  Titles.  [chap.  x. 

persons  claiming  through  them,  though  the  twenty  years  may 
have  elapsed,  are  allowed  ten  years  (unless  the  whole  period 
amounts  to  more  than  forty  years  ^)  after  the  removal  of  their 
disability,  or  after  the  death  of  the  person  disabled.  And  if  the 
occupant  have  given  to  the  true  owner  an  acknowledgment  in 
writing,  signed,  of  his  title  to  the  land,  the  period  of  twenty  years 
begins  to  run  anew  from  the  date  of  any  such  acknowledgment^. 
Thus  for  all  practical  purposes  the  eft'ect  of  the  above-stated 
rules  is  to  make  occupation  without  title  for  twenty  years  (sub- 
ject to  the  exceptions  already  noticed)  equivalent  to  a  mode  of 
acquiring  a  right.  Such  an  occupant  would  before  the  Statute 
of  Limitations  have  been  safe  from  attack  by  entry  or  action  at 
the  hands  of  the  true  owner  or  any  third  party.  And  now  the 
Statute  of  Limitations  contains  a  provision^  that  not  only  the 
right  of  action  shall  be  barred  by  the  lapse  of  twenty  years,  but 
the  right  of  property  itself  shall  be  extinguished.  For  all 
practical  purposes  therefore  it  may  be  said  that  by  possession 
without  title  for  twenty  years  the  occixpant  now  acquires  an 
estate  in  fee  simple  in  the  lands  *,  as  against  all  persons  except 

'  3  and  4  Will.  IV,  c.  27.  s.  17.  ^  lb.  s.  14.  ^  lb.  s.  34. 

■*  It  should  be  observed  that  the  mode  of  acquiring  'corporeal  heredita- 
ments' by  lapse  of  time  differs  essentially  in  principle  from  acquisition  of 
'incorporeal  hereditaments'  by  prescription.  In  the  latter  case,  as  has 
been  shown  above,  long-continued  enjoyment  as  of  right  was  regarded  as 
evidence  of  a  grant  by  some  owner  of  the  praedium  serviens.  The  Pre- 
scription Act,  operating  upon  this  state  of  the  law,  made  long-continued 
enjoyment,  as  of  right,  a  positive  mode  of  acquiring  the  right.  The  mode 
of  acquisition  of  corporeal  hereditaments,  treated  of  in  the  text,  has  been 
reached  by  another  road,  highly  characteristic  of  the  practical  character  of 
English  law.  By  extinguishing  all  possible  remedies,  the  right  of  the 
occupant  is  made  impregnable,  and  unlike  Roman  law,  or  our  own  law  of 
prescription,  nothing  but  the  bare  fact  of  possession  without  title  for  a 
sufficiently  long  period  is  necessary  to  create  the  negative  title  resulting 
from  the  Statute  of  Limitations.  The  conditions  required  by  the  civil  law, 
bona  fides,  justa  causa,  Justus  titulus,  &c.,  have  no  place  in  our  law.  [By 
an  Act  passed  in  the  session  of  Parliament,  37  and  38  Vict.  c.  57,  the 
periods  of  limitation  mentioned  in  the  text  have  been  reduced,  twelve  years 
being  substituted  for  twenty,  thirty  for  forty,  and  six  for  ten.  This  Act 
has  also  in  other  respects  modified  tlie  provisions  of  tiie  earlier  Statute. 
The  new  law  does  not  come  into  force  till  January  i,  1879.] 


§  3']  Miscellaneous.  347 

one  whose  right   of  entry  or   action  has   not  existed  for  that 
period '. 

(3)  Comjpidsory  Acquisition  for  Public  Purposes. 

There  are  certain  modes  of  acquiring  land  by  what  may  be 
called  a  process  of  involuntary  alienation,  where  the  law  provides 
means  for  depriving  a  person  of  his  property  upon  proper  com- 
pensation being  made  to  him,  and  vesting  it  in  other  persons,  or 
in  a  corporation,  notwithstanding  any  opposition  by  the  owner. 
Thus  the  legislature  provides  machinery  for  compelling  persons 
to  divest  themselves  of  lands  which  may  be  required  for  certain 
purposes  of  public  utility ;  for  instance,  a  railway,  public  ele- 
mentary schools,  or  certain  public  works.  This  is  principally 
effected  by  the  machinery  provided  by  the  Lands  Clauses  Con- 
solidation Act  ^.  This  Act  contains  a  set  of  general  provisions, 
which  are  usually  incorporated  in  the  special  Acts  authorising 
and  regulating  individual  undertakings,  providing  for  a  mode  of 
comi)ulsorily  vesting  the  property  required  in  the  company  or 
other  body  undertaking  the  public  works  by  the  giving  certain 
notices,  and  taking  the  requisite  steps  to  assess  and  pay  the 
proper  compensation  for  the  lands  taken. 

(4)  Acquisition  under  Inclosure  Acts. 

The  legislature  has  also  provided  special  means  for  acquiring 
and  divesting  rights  over  common  and  waste  lands.  Tlie  limits 
within  which  the  lord  might  bv  himself  exercise  his  risfhts  of 
ownership  over  the  land  have  already  been  noticed  ^.     Of  course 

*  Observe,  that  if  the  occupancy  began  during  the  continuance  of  a 
particular  estate,  the  period  of  limitation  does  not  begin  to  run  against  the 
remainderman  or  reversioner  till  his  estate  vests  in  possession  (see  above, 
p.  185).  For  instance,  if  lands  have  been  given  to  .4  f  r  life,  remainder  to 
li  in  fee,  and  during  A's  life  0  wrongfully  obtains  possession,  as  against  A 
the  period  of  limitation  will  begin  to  run  from  the  commencement  of  CV 
possession,  but  as  against  B,  not  till  the  death  of  A,  for  not  till  then  can  B 
enter  or  bring  ejectment.  Contra  non  valentem  agere  non  currit  prae- 
scriptio. 

«  8  Vict.  c.  i8.  3  Chap.  III.  §  17  (2). 


348  Titles.  [chap.  x. 

a  '  common'  miglit  always  be  dealt  with,  as  any  other  piece  of 
property,  by  the  concurrence  of  all  the  persons  having  rights 
over  it,  that  is  to  say,  by  the  concurrent  action  of  the  freeholder 
or  lord  of  the  manor  and  all  the  commoners.  But  owing  to  the 
practical  impossibility  of  obtaining  the  consent  of  all  the  com- 
moners, it  became  usual  for  the  legislature  to  pass  private 
Acts  of  Parliament,  authorising  inclosures  in  particular  places, 
and  providing  compensation  to  the  lord  and  the  commoners 
for  the  rights  of  which  they  were  deprived,  usually  by  giving 
them  the  benefit  of  the  exclusive  ownership  of  a  portion  of  the 
soil  of  the  common  discharged  of  rights  of  common,  in  lieu  in 
the  former  case  of  the  seignory  of  the  whole,  and  in  the  latter  of 
the  rights  of  common  which  were  extinguished. 

The  Inclosure  Acts,  of  which  the  Statute  8  and  9  Vict.  c.  1 1 8 
is  the  most  important,  contains  provisions  for  carrying  out  in- 
closures through  the  Inclosure  Commissioners.  The  consents  of 
the  requisite  number  of  persons  interested  in  the  land,  and  of  the 
lord  of  the  manor,  must  be  obtained.  If  the  inclosure  is  carried 
out,  the  Commissioners  may  award  certain  portions  of  the  waste 
for  recreation,  for  allotments  to  the  labouring  poor,  and  for 
roads  ;  the  residue  is  divided  amongst  the  persons  who  previously 
had  rights  over  the  land,  and  the  lord  of  the  manor.  Upon  the 
allotment  being  made,  the  common  or  other  rights  enjoyed  over 
the  land  previous  to  the  inclosure  are  extinguished  \ 

The  land  allotted  to  the  various  persons  Avho  already  were  the 
owners  of  adjoining  lands  becomes  part  of  and  is  held  by  the  same 
tenure  as  the  lands  to  which  it  is  annexed  :  if  annexed  to  free- 
holds, the  land  becomes  freehold,  and  is  held  for  the  same  estate 
as  the  land  to  which  it  is  annexed  ;  if  the  adjoining  land  is 
copyhold,  the  annexed  land  becomes  copyhold  also. 

(5)  Compulsory  Enfranchisement  of  Copyholds. 

Another  species  of  compulsory  alienation  takes  place  under 
the  Acts  by  which  either  a  lord  of  a  manor  or  a  copyhold  tenant 

'  8  and  9  Vict.  c.  no.  s.  106. 


§  3']  Miscellaneous.  349 

is  entitled  to  compel  enfranchisement  through  the  medium  of 
the  Copyhold  Commissioners^.  Enfranchisement,  as  has  been 
seen,  consists  in  the  conveyance  of  the  freehold  by  the  lord  to 
his  copyhold  tenant  ^.  Either  lord  or  tenant  may  now  under 
the  provisions  of  the  above-mentioned  Acts  obtain  an  award  of 
enfranchisement,  compensation  in  money  paid  down  or  secured, 
or  in  land,  being  awarded  to  the  lord. 

(6)  BanJcruptcy. 

Estates  in  land  are  lost  or  acquired  by  the  bankruptcy  of  the 
tenant.  Upon  the  appointment  of  the  trustee  in  bankruptcy 
under  the  provisions  of  the  Bankruptcy  Act,  1869^,  the  whole 
of  a  person's  freehold,  leasehold,  and  copyhold  estates  vest  in  the 
trustee,  in  trust  for  the  creditors. 

The  following  table  shows  in  a  concise  form  the  classification 
of  modes  of  acquisition  which  has  been  presented  in  this 
chajiter. 

*  15  and  16  Vict.  c.  51 ;  21  and  22  Vict.  c.  94.       ^  See  above,  p.  219. 
^  32  and  33  Vict.  c.  71. 


INDEX. 


Acceptance,  p.  324. 
Active  duty,  291,  297. 
Administration  suit,  209. 
Administrator,  169,  343. 
Admittance  (of  copyhold  tenant), 

215,  220,  221. 
Advo'wson,  150  no'e,  227. 
Aids,  32,  66,97,  315,317. 
Alien,  incapacity  of,  325. 
Alienation,  74-77,  97,112-115,  154, 

162-166. 

—  restraint  on,  in  favour  of  family,  6. 
of  heir,  74,  75. 

of  lord,  97,  112,  154,162. 

of  king,  112,  113. 

—  condition  against,  114. 

—  licence  of,  112,  113,314,315,317. 

—  title  by,  322-337. 
inter  vivos,  327. 

—  compulsory,  for  public  purposes, 

347- 
Alieno  solo,  rights  in,  228,  229. 
modes  of  acquisition  of,  327- 

33°- 
Alodium,  5,  19. 

—  conversion  of,  into  feudum,  2.q. 
Ancient  demesne,  41  «.,  iii  n. 
Anglo-Saxon  law,  18. 

—  charters,  22,  46-49. 
Appointment,  power  of,  283-2S5, 

293- 
Approvement  of  commons  under 

Statute  of  Merton,  98,  140-145. 

Statute  of  West.  II,  160,  161 . 

at  Common  Law,  142,  148. 

Appurtenant  servitudes,  131,  145. 

Arable  mark,  1 2. 

Assartum,  140. 

Assets,  178. 

Assignment,  333. 

Assigns,  118. 


Assisarum  Liber,  197. 
Ass'se,  remedy  by,  79-84,  III. 

—  of  Northampton,  81. 
Attachment,  246. 
Attainder,  344. 
Attorney,  78  ti. 
Attornment,  127,  172,  186. 

—  abolition  of,  188. 
Avowry,  274  n. 

Bankruptcy,  349. 
Bargain  and  Sale,  253. 

—  effect  of  Statute  of  Uses  on,  278. 

—  enrolment  of,  279,  287-290. 
Bastard,  74. 

Battle,  trial  by,  60  n. 
Beneficia,  24. 
Bocland,  5,  6. 
Bordarii,  18  «.,  41,  42. 
Boroughs,  customs  of,  21. 
Borough  English  tenure,   39,   73, 

251- 
Bracton,  Henricus  de,  his  treatise, 

88. 
Britton,  146,  172. 
Brooke's  Abridgment,  197. 
Burgage  tenure,  39. 

—  custom  of  devise  in,  39,  197. 

Capite,  tenant  in,  22,  96,  113. 

—  mistaken  use  of  term,  316  n. 
Cestui  que  trust,  see  Trusts. 
Cestui  que  use,  244,  249. 

—  conveyances  of,  made  good,  268. 

—  position  of,  assimilated  to  legal 
owner,  269-272. 

Cestui  que  vie,  1 1 7  «. 
Chancellor,  159  n. 

—  early  functions  of,  244-246. 

—  growth  of  his  judicial  functions, 
247,  248. 


352 


Index. 


Chancery,  Court  of,  251-256,  290- 

295- 
Charitable  uses,  325,  326. 

Charter  of  feoflfment,  104. 

Chattels  real,  170;  5«e  Leasehold 
interests. 

Chief,  Teutonic,  position  and  func- 
tions of,  2. 

—  his  relation  to  the  land,  4. 
Chirograph  of  fine,  77. 
Chivalry,  tenure  in,  30. 

abolition  of,  39. 

Circuits,  55,  86,  140. 
Clergy,  influence  of,  2  n.,  22. 
Code  Napoleon,  196. 
Cognizance,  274  n. 
Collaterals,  descent  to,  74,  341. 
Comes,  14;  se«  Prineeps. 
Commendation,  19,  25,  27. 
Common,  rights  of,  98,  134-1 45, 

160,  161. 

—  of  copyhold  tenants,  137  «.,  217. 

—  in  gross,  137,  i39- 

—  over  enclosed  lands,  139,  144. 

—  pur  cause  de  vicinage,  145. 

—  disseisin  of,  84,  136. 
Common  appendant,  135,  136. 
Common  appurtenant,  137,  139, 

142  71.,  160,  161. 
Commonable  cattle,  135- 
Common  fields,  12,  139,  144  n. 
Common  law,  origin  of,  26. 

—  meanings  of,  55  n.,  86,  168. 

—  deficiencies  of,  247. 

—  modes    of   acquiring    rights    at, 

331- 
Common  Pleas,  Court  of,  59,  78  n. 

Commons,  inclosure  of,  347,  348. 

Condition,  116. 

—  estates  upon,  190,  201,   210-213, 

233,  335- 
Conditional  gifts,   115,    110,    116- 

122,  154. 
Conscientious  obligation,  244. 
Consideration,  252. 
Continental  feudalism,  23-25,  29. 
Contingent  remainder,  191 -201. 

—  of  freehold  requires  support  of 
particular  estate  of  freehold,  193, 
294  n. 

—  liability  to  destruction,  194,  294 ;?. 

—  alienation  of,  194. 
Continual  claim,  106  n.,  197. 


Contract,  a  source  of  rights  in  per- 
sonam, 225. 
Conventiones,  21,  41,  124. 
Coparceners,  201,  202,  206. 
Copyhold,  42,  213-222.  , 

—  origin  of,  lio,  213. 

—  of  frank  tenure,  1 1 1  «. 

—  alienation  of,  218,  220,  221. 
by  will,  221  «.,  311,  337. 

—  descent  of,  343. 

—  enfranchisement  of,  219,  348. 
Copyhold  Commissioners,  219. 
Corona,  tenant  ut  de,  100  «. 
Corporation,  150. 

Corporeal  hereditaments,  230  «. 

Corruption  of  blood,  344. 

Cotarii,  Cotsetle,  18,  41. 

Coterelli,  149. 

Count  (narratio),  182  n. 

County  Covirt,  60. 

Court,  of  lord,  20. 

—  of  manor,  42,  45. 
Court  Baron,  42-44,  214. 
Court  leet,  44. 

Court  Rolls,  215,  217. 
Covenant,  writ  of,  111,  1 24,  126. 

—  running  with  land,  334. 

—  to  stand  seised,  253,  278. 
Creditors'  Rights,   207-213,    231, 

326,  330. 

Crown,  bee  King. 

Cui  in  vita,  writ  of,  264,  266. 

Curia  Regis,  55,  58-61. 

Curtesy,  tenant  by  the,  122,  123, 
158. 

Custom,  how  distinguished  from  pre- 
scription, 129  «. 

—  local,  38.  57.  61. 

—  of  manors,  no,  214-220. 

—  profit  not  claimable  by,  1:9 «., 
144  n. 

Customary  Court,  45,  215,  210. 
Customary  freehold,  217  «. 
Customary  law,  19,  52. 
Custixmarii  tenentes,  149. 

Damnum,  how  distinguished  from 

injuria,  133. 
Debts,  see  Creditors'  Bights. 
Deed,  ni  «. 

—  when  necessary  to  create  right, 
128,  332. 

Demise,  words  of,  169. 


Index. 


353 


Demurrer,  296. 

Descent,  in  Anglo-Saxon  law,  21. 

—  in  frceliolds,  71-74,  33^-343- 

—  how  restricted  to  lineal  descend- 
ants, 154. 

—  in  copyholds,  214,  343. 
Destination  du  Pere  de  famille, 

328. 
Devise,  see  ^Vill. 
Devisee,  liability  of,   for  debts  of 

devisor,  209,  307. 
Dignities,  227. 
Disclaimer,  324. 
Disseisin,  80. 

—  of  rights  in  alieno  solo,  84,  133, 
134.  136,  139- 

Disseisor,  release  to,  109  n. 
Distress  for  rent  in  arrear,  166  n., 

174. 
Domain  lands,  17,  40,  148. 
Domesday  Book,  30,  41. 
Domesday  of  St.  Paul's,    17  «., 

40. 
Dominant  tenement,  131. 
Donis  Conditionalibus,  Statutum 

de,  153-159- 
Dos,  75. 
Dower,  94,95,  251,  293. 

—  jointure  bars,  274,  275. 

—  mode  of  barring,  284. 

—  writ  of,  95. 

Duration    of    estate,    21,   50,  115, 

332- 
Duress,  323. 

Easement,  127,  230. 

—  negative,  132  «. 

—  carries  right  to  repair,  133,  134. 
Ecclesiastical     Jurisdiction      in 

case  of  will,  121. 
Ejectio  firmae,  writ  of,  124,  126. 
Ejectment,  action  of,  82,  170,  221  «. 
Elegit,  writ  of,  207,  208,  330. 
Emblements,  175  n. 
Emphyteusis,  23. 
Enfranchisement    of    copyholds, 

219,  348. 
Enrolments,  Statute  of,  287-290. 
Entails,  48. 

—  evils  of,  179. 

—  by  custom,  218. 
Entry,  right  of,  80. 

—  writ  of,  82. 


Equitable  estate,  293,  294. 

—  after  Statute  of  Uses,  290-297. 
— ■  —  modes  of  acquisition  of,  336. 
Equity,  Courts  of,  see  Chancery. 

—  follows  law,  251. 
Equity  of  Statute,  177. 
Escheat,  34,  50,  70,  71,  343-345. 
Escuage,  see  Scutage. 

Estate,  in  lands,  conception  of,  34, 
50,  123,  196,  233. 

—  of  inheritance,  21,  234. 

—  in  fee  simple,  50,  234. 
conditional,  119,  154,  218. 

—  tail,    119,    153-160,    176-184, 

234- 

—  for  life,  21,  116. 

—  less  than  freehold,  234. 

—  for  years,   117;   see    Leasehold 
interests. 

—  at  will,  from  year  to  year,  on  suf- 
ferance, 170,  171,  333. 

Estovers,  common  of,  134. 
Evidence,  early  notions  of,  123  n. 

—  of  interested  witness,  301. 
Exception,  121. 
Exchange,  331. 
Execution,  207. 

Executory     devises,     236,     302, 

.303. 
Extenta  manerii,  1 48  - 1 50. 

Parmer,  40,  169;  see  Lessee. 

Fealty,  24,  38,  62  n. 

Pee,  meanings  of,  50,  59  n. 

Pee  farm,  92. 

Felony,  effect  of  conviction  for,  7 1 , 

344- 
Feoffment,  40. 

—  form     of,    50,     51,      104,      105, 

331- 

after  Quia  Emptores,  165. 

to  uses,  259,  261. 

Feoffor,  Feoffee,  40. 

Feoffee  to  uses,  242,  248,  249,  277, 

278. 

—  liability'of  heir  of.  250. 
Pet  assavoir,  147  n. 
Feudal  system,  26  n. 
Feudalism,  22-25. 
Feudiim,  24,  30. 
Fidei-commissa,  24 1. 
Pidei  laesione,  suits  de,  239. 
Fieri  facias,  writ  of,  207. 


A  a 


354 


Index. 


Fine,  on  alienation,  34  n.,  113. 

—  on  admittance  of  copyhold  tenant, 
214. 

Fine  of  lands,  I'^-'jg,  159  n. 
Fines    and    Recoveries,    Act   for 

abolition  of,  78,  181,  218. 
Firmarii,  21. 
Fleta,  146. 
Folcland,  3-1 1. 

—  grants  of,  4-6. 

—  possessory  rights  over,  7,  8. 

—  becomes  terra  regis,  9,  18. 
Forfeiture,  70,  97,  345. 

—  for  breach  of  condition,  waiver 

of,  335- 
Forfeitures  after  Conquest,  27. 
Forinseca  servitia,  103. 
Forinseci  tenentes,  149. 
Formedon,  writs  of,  158,  159. 
Franchise,  227. 
Frankalmoign,  30,  loi,  319. 
Frank-marriage,  75  ti.,  157. 
Frank-pledge,  view  oi^  44  w. 
Frauds,  Statute  of,  105,  169,  300, 

332. 
Fraudvilent  conveyances,  326. 
Freebench,  217  ?i. 
Free  services,  40,  99. 
Freehold  cannot  be  in   abeyance, 

107,  1S9. 
Freehold   teniire,    40,    99,     115, 

116. 
Free  man  may  hold  in  villenage, 

110. 
French  language,  147,  167. 
Future  enjoyment,    rights   of,   in 

freeholds,  185-201,  236. 

—  rights  of,  created  by  way  of  use, 
255>  256,  280-287. 

Future  uses,  283. 

Gavelkind,  38  n.,  122  «.,  342. 
Geburi,  18  «. 

Gift,  technical  sense  of,  331. 
Gifts  of  chief  to  follower,   14,  15, 

24. 
Glanvill,  56,  58. 
Gloucester,  Statute  of,  170. 
Grand  Serjeanty,  30,  319. 
Grant,  186,  1S8,  332. 

—  of  servitude,  12S,  32S. 

—  lost,  129,  329. 

—  made  equivalent  to  livery,  336. 


Gross,  rights  in,  128,  145. 
Guardian  in  Chivalry,  66-68,  91, 
100,  314-318. 

—  in  Socage,  39,  67,  68,  319,  320. 
power   of  father   to  appoint, 

319- 

Habendum,  296. 
Half-blood,  341. 
Heir,  meaning  of  term,  338. 

—  effect  of  devise  to,  307. 

—  when  liable  for  ancestor's  debts, 
208,  209 ;  see  Descent. 

Heirs,  gift  to  a  man  and  his,  116- 
118. 

—  customary,  214,  215. 

—  of  body,  119,  120,  176, 
Hengham,  147  n. 
Heriot,  31,  32,  214. 
Homage,  25. 

—  definition  of,  61. 

—  form  of,  28,  63. 

—  of  bishops,  64. 

—  the,  216. 

Honore,  tenant  ut  de,  100  n. 
Husband,   duties  of,  in  respect  of 
wife's  lands,  65. 

—  rights  of,  over  wife's  lands,  122, 

i=3>323- 

—  and  wife  considered  as  one  per- 
son, 204. 

Inelosure  Acts,  347,  348. 
Incorporeal  hereditaments,  228, 
229,  230. 

—  modes  of  acquiring,    108,    328- 

330. 
Infangthef,  43  «. 
Infant,  conveyance  by,  323. 

—  conveyance  to,  324. 
Inhabitants,  cannot  as  such  claim 

profit  by  custom,    129  n.,   144  n., 

MS- 
Inheritance,  words  of,  305. 
Inheritance  Act,  72,  74  11.,  338. 

—  changes  effected  by,  339-342. 
Injuria,  how  differs  from  Damnum, 

133-  .  .       ^ 

Injuries,  rights  arising  from,  225. 

Interesse  termini,  169. 

Interruption    of    right,    prevents 

prescription,  132  n. 

Intruiseca  servitia,  102. 


Index. 


YoS 


Investiture,  io6. 
Itinera,  55. 

Joint  tenants,  201-204,  279. 
Jointure,  255,  274,  275. 
Judicial  records,  86. 
Judiciary  law,  53,  87. 
Jura  in  re  aliena,  196. 
Jury,  trial  by,  82,  107,  iii  «. 
Justices,  59. 
Justiciar,  59. 
Justicies,  writ  of,  66  n. 

Kindred,  rights  of,  6. 
King,  his  relation  to  the  land,  4,  18, 
27-29. 

—  to  thanes,  20. 

—  private  property  of,  6. 

—  growth  of  rights  of,  over  unoc- 
cupied land,  9. 

—  military  service  due  to,  28,  99- 
104. 

King's  Bench,  Court  of,  103  n. 
Knight,  aid  for  making  lord's  son 

a,  32- 
Knighthood  compulsory,  314. 
Knight-service,  tenure  by,  30-34, 

51  n.,  99-104. 
abolition  of,  313-320. 

Laenland,  8,  20  n. 

Lammas  lands,  13. 

Lands     Clauses      Consolidation 

Act,  347. 
Language  of  law,  147,  167. 
Lapse,  306. 
Lavsr,  positive,  soiuxes  of,  53. 

—  distinguished  from  custom,  52. 
Lease,  331. 

Lease  and  Kelease,    109  71.,    1S8, 

288,  2S9. 
Leasehold  interests,    origin    and 

history  of,  123-127,  16^-15-5. 

—  descent  of,  125,  169,  342,  343. 

—  how  created,  168,  169,  332. 

—  uses  of,  271,  291. 

—  imderlease  or  assignment  of,  333. 
Legislation,  direct,  judicial,  53. 
Lessee,  nature  of  interest  of,  124, 

125,  172. 
Levant  and  oouchant,  of  common- 
able beasts,  135. 

A  a 


Libera   eleemosyna,    i-ee   Frank- 
almoign. 
Liberum  tenementum,  40,  101. 

—  =  estate  for  life,  50  ?r,  117. 
Ligeantia,  63. 

Light  and  air,  easement  of,   127, 

1,^3  n,  231. 
Limitation,    words    of,    116,    119, 

195- 
m  wills,  304,  305. 

—  period  of,  So,  83,  161. 
Limitations,  Statute  of,  title  by, 

345>  346- 
Limited  interests,  48. 
Littleton's  Tenures,  168. 
Livery,  see  Ouster  le  main. 
Livery  of  Seisin,  see  Seisin. 
Lord,  relation  of,  to  man,  14,  15. 

—  of  district  or  manor,  10,  16,  17, 

35,  36. 

—  relation  of,  to  inhabitants,  20. 
to  tenants,  15,  20,  25,  61,  62, 

162-164,  316. 

—  rights  of,  over  waste  land,  21, 
98,  129  M.,  130,  134,  140,  148, 
160,  i6i. 

—  jurisdiction  of,  in  writ  of  right, 
59.  60. 

Lords,    influence    of    great,    upon 

legislation,  90.  153,  162. 
Lunatic,  conveyance  by,  322, 

—  conveyance  to,  324. 


Magna  Carta,  85,  89. 

Magnum   servitium,    see    Grand 

Serjeanty. 
Manor,  34,  35,  147-150,  213,  214. 
Manor  Courts,  42-45,  215,  216. 
Mausa,  47  n. 
Mansio,  17,  35. 
Maritagium,  75,  95,  157. 
Mark,  11. 
Marriage,  right  of  lord  to,  33,  69, 

92-94,  100,  102,  103,  314-317- 

—  in  socage,  39. 

Married  women,  equitable  estate 
of.  254,  255,  295. 

—  alienation  by,  264-266,  295,  323. 

—  will  of,  265,  266,  312. 

—  husband  may  convey  use  to,  279. 

—  purchase  by,  325. 
Merchants,  Statute  of,  207,  208. 

2 


35^ 


hidex. 


Mereliettiin,  i  lo. 

Merger,  187. 

Merton,  Statute  of,  93,  98,  140. 

Mesne  lord,  31. 

Military  service,  29,    31,  51,  99, 

100,  103. 
Military  tenure,  25,  26,  28,  loi. 

—  abolition  of,  313-320. 
Mirror  of  Justices,  146. 

Mort  d' Ancestor,    Assize  of,  79, 

80,  83. 
Mortgage,  -209-213,  330. 

—  equitable,  330. 

Mortmain,  statutes  restraining,  98, 
150-153,  165,  256,  257,  325. 

—  licence  to  hold  in,  151. 

—  evasion    of    provisions    against, 
240,  243. 

Norman  Conquest,  effects  of,  26, 

27. 
Norman  law,  26. 
Northampton,  Assize  of,  81. 
Notoriety,  necessity  for,  106,  189. 
Novel  disseisin,  Assize  of,  81-84, 

140. 

Occupant,  117  «. 

Office,  inquest  of,  325,  344. 

Offices,  228. 

Ouster  le  main,  33,  314,  316. 

Outlawry,  71. 

Ownership,    conception    of,    228, 

229,  233. 
—  acquisition  of,  331. 

Pais,  matter  in,  158,  263. 

Parceners,  see  Coparceners. 

Pares  curiae,  215. 

Parish.,  35. 

Parishioners,  supposed  rights  of, 
12  n. 

Parks,  enclosure  of,  141,  148. 

Participes,  201. 

Particular  estate,  186,  188. 

Partition,  204,  332. 

Peerages,  228. 

Perpetuity,  rule  against,  285-287. 

Personal  actions,  58. 

Personal  property,  227. 

Personam,  rights  in,  see  Rights. 

Petitions,  reference  of,  to  Chancel- 
lor, 245. 


Piscary,  common  of,  134. 
Placita,  67. 

Placitorum  Abbreviatio,  87. 
Positive  law,  54. 
Possessio,    adaptation   of   Roman 
doctrine  of,  107-109. 

—  fratris,  338. 
Possessory  actions,  80. 
Possibility,  156,  185,  193. 
Power,  see  Appointment. 
Prescription,  128-130,    137,    329, 

346  n. 

—  conditions  of,  131,  132. 

—  how  distinguished  from  custom, 
129  n. 

—  in  a  que  estate,  137. 
Prescription  Act,  130,  329. 
Present  enjoyment,  right  of,  185. 
Primer  seisin,  34,  315,  317. 
Primogeniture,  38,  72,  340. 
Princeps,  relation  of,  to  comes,  14- 

16. 
Private  law,  85,  223. 
Private  property  in  land,  3. 
Procreation,  words  of,  157,  176. 
Profit  a  prendre,  127, 129  «.,  145W., 

230. 
Property,  meanings  of,  226. 
Protector  of  settlement,  181. 
Public  land,  3. 
Public  law,  223. 

Purchase,  words  of,  115.  116,  195. 
Purchased  land,  alienation  of,  76. 
Purchaser,  339. 

—  liability  of,  to  cestui  que  use,  250. 

—  for  valuable  consideration,  rights 
of,  326. 

Quarantine,  widow's,  91;. 

Quare    ejecit     infra    terminum, 

writ  of,  1 70. 
Q\iia  Emptores,  Statute  of,  135, 

164-166. 
Quit  rent,  217. 

Real  actions,  58,  82. 
Real  property,  125,  227. 
Realist  philosophy,  influence   of, 

267,  292,  344. 
Recognitio,  trial  by,  82. 
Recognizance,  208. 
Record  Commission,  87. 


Index. 


357 


Becoveries,     151,    153,    170,    180, 

1 84  n. 
Hedemption,  equity  of,  211. 
Kelease,  125,  172,  187. 
Relief,  31,  65.  70. 

—  in  socage  tenure.  39,  65. 
Religiosis,  Statutum  de,  152,  153. 
Keligious  persons,  incapacity  of, 

205. 
Rem,  rights  in,  see  Rights. 
Remainder,    ii6,    no,    156,    174, 

188-201,  236. 

—  definition  of,  188. 

—  freeliold,     conditions    of,     189, 
190. 

—  vested,  how   distinguished    from 
contingent,  191,  236. 

—  of  uses,  272,  283. 

—  see  Contingent  Remainder. 
Remainderman,  181. 
Rents,  37,  38,  231. 

—  different  kinds  of,  166  n. 

—  creation   of,    under    Statute    of 
Uses,  273. 

Reports,  56,  87,  146. 
Resulting  use,  253,  277. 
Reversion,  119,  155, 156,  179,  186- 
1S8,  236. 

—  release  of,  to  tenant,  125  «.,  187, 
188. 

—  grant  of,  172  «.,  186,  187. 

—  definition  of,  186. 
Reversioner,  181. 

—  tenure  of,  177,  186. 
Right,  writ  of,  58-60. 

Rights  in  rem,  in  personam,  1 23  «., 
224,  225. 

—  primary,  secondary  or  sanc- 
tioning, 225  H. 

Rodknightes,  service  of,  102. 
Roman  law,  influence  of,  2  n.,  23, 

56,  88,  89,  106-108, 121, 125,  127, 

131-1.^5.  240-242. 
Rotuli  Curiae  Regis,  56,  87. 

Saca,  20  n.,  43  n. 
Sarum,  Council  of,  28. 
Scintilla  juris,  292  «. 
Seutage,  29,  96,  101. 
Seal,  use  of,  47  n. 
Secta,  37«.,  102. 
Seignory,  17  «.,  40  «.,  45. 
Seisin,  40  «.,  79,  80,  17a. 


Seisin,  livery  of,  4  «.,  40,  50,  105- 

109,  173,  261. 
Serjeanty,  grand,  30,  319. 

—  petit,  39,  92,  102. 
Servi,  41,  42. 

Services,  kinds  of,  60,  61,  102  ;  see 
Military  Service. 

—  agricultural,  17  «.,  36  «.,  102. 

—  in  socage.  36,  102. 

—  free  and  base,  37,  40,  99. 
Servient  tenement,  131. 
Servitudes,  127-145. 
Shack,  common  of,  13  n.,  144  n. 
Shelley's  Case,  rule  in,  195,  ^05. 
Sheriff,  60. 

Shifting  uses,   236,  255,  256,  281, 

2S2. 
Soca,  20  n.,  37  n. 
Socage,  etymology  of  term,  36  n. 

—  tenure,  36-39,  loi,  102. 

—  free  and  villein,  37  n. 

—  descent  of  lands  in,  38,  72. 

—  conversion    of    military  tenures 
into,  164,  316-320. 

Socmanni,  36. 

Special  occupant,  1 1 7  «. 

Specialty  debts,  209. 

Springing  uses,  236,  255,  256,  282. 

Stapulis,  Statutum  de,  207,  208. 

Statute  law,  85,  86. 

Stillicidium,  231. 

Strict  settlement,  181  n. 

Subinfeudation,  abolition  of,  162- 

166. 
Subject  of  right,  224,  226. 
Sub-poena,  writ  of,  219,  246. 
Substitution,  196. 
Successioper  universitatem,  301. 
Succession,  title  by,  337-343. 
Sufferance,  tenant  at,  171. 
Suit  of  Court,  see  Secta. 
Surrender,  331. 
Surrender  of  copyhold,  218,  220. 

—  —  to  use  of  will,  221  n. 
Survivorship,  202,  203. 

Tail,  see  Estate  Tail. 

—  earliest  mention  of  estate,  161. 

—  male,  female,  176,  177. 

—  special,  general,  176. 

—  special,  gift  in,  119,  120. 

—  after  possibility  of  issue  extinct, 
177,  182. 


358 


Index. 


Tail,  mode  of  barring  estate,  180- 
184. 

—  alienation  of  estate,  181. 
Teclinical  terms,  46,  49. 
Teloneum,  43  n. 

Tenant  in  capite,  see  Capite. 

Tenant  in  common,  201,  204-206. 

Tenendum,  50. 

Tenements,  157. 

Tenure,  growth  of,  19,  29,  40  n. 

—  different  kinds  of,  99-104. 

—  in  fee  of  mesne  lord,  162-164. 
Term,  meaning  of,  123  n.,  333  n. 
Termor,  see  Lessee. 

Terms  of  3'ears,  1 2  3- 1 2  7 ;  see  Lease- 
hold Interests. 
Terra  regis,  see  Foleland. 

—  dominica,  1 7. 
Text  books,  87,  167. 
Thane-land,  5  n. 

—  -law,  18  «. 

Thanes,  their  relation  to  king,  15, 
19,  20. 

—  pass  into  tenants  in  capite,  22. 
Themum,  43  n. 

Thing,  meaning  of,  224  n. 

Things  real,  personal,  227. 

Thornton,  Gilbert  de,  147. 

Time  immemorial,  220. 

Tithes,  231. 

Title,  meaning  of,  321. 

Titles,  classification  of,  321-349. 

Torts,  225  «. 

Tourn  of  Sheriff,  44. 

Township,  1 1 . 

Traders,  liability  of  heir  of  deceased, 

209. 
Traditio,  107. 
Transmutation  of  possession,  uses 

raised  by  or  without,  253,  278. 
Trespass,  action  of,  262  n. 

—  action  of,  by  copyholder  against 
lord,  222. 

Trinoda  necessitas,  5, 16,  28,  49. 
Trusts,  293. 

—  implied,  294. 

—  creation    and  transfer,  mode  of 
294. 

Trustee,  279.  293. 

Turbary,  common  of,  134,  139. 

Underlease,  333. 
Usage,  influence  of,  244. 


User,  extent  of  power  of,  over  pro- 
perty, 229. 

Uses  of  lands,  early  history  of, 
242-266. 

—  early  recognition  of,  239,  242. 

—  advantages  of,  242,  243. 

—  nature  of  obligation  constituting, 
244. 

—  will  of,  249,  254. 

—  who  capable  of  holding  to,  251. 

—  who  capable  of  taking,  254, 
256-258. 

—  follow  legal  rules,  251. 

—  creation  and  alienation  of,  252- 

254- 

—  implied,  252. 

—  refusal  of  Common  Law  Courts  to 
recognise,  262,  263. 

—  conveyances  by  cestui  que  use 
made  good,  268. 

—  become  legal  estates,  271,  272. 

—  usual  later  sense  of,  271  n. 

—  upon  uses,  293,  296. 

Uses,  Statute  of,  2(58-276,  335. 

—  effects  of,  upon  conveyancing, 
276-287. 

—  upon  wills,  299,  303,  304. 
Usucapio,  131  n. 

Usury,  penalties  of,  210. 
Usus-fructus,  241.  * 

Utfangthef,  43. 

Vice-comes,  see  Sheriff. 
ViUa,  35. 

Village  assembly,  12,  20. 
Village  communities,  11-13. 
Villenagium,  39  n.,  42,  loi,  109- 
112,  214. 

—  purum,  privilegiatum,  no. 

—  remedies  of  tenant  in,  ill. 

—  alienation  of,  112. 
Villeins,  1 8  n. 

■ —  in  gross,  regardant,  42. 

—  customary  rights  of,  41. 

—  different  kinds  of,  ill. 
Vivum  vadium,  210. 
Voluntary  gifts,  void  against  pur- 
chasers, 326. 

Wardship,  33,   66-68,    315,  319; 

see  Guardian. 
Warranty,    64,   118  ?i.,    119,    154, 

178,  182-184. 


Index. 


359 


Wafranty,  lineal,  collateral,  179. 

—  vouching  to,  183,  1S4. 
"Waste  land,  early  rights  over,  8,  9, 

1 2,  1 34 ;  see  Lord. 
"Watercourses,  230. 
"Ways,  133,  134,  230. 
■Westminster  II,  Statute  of,  153, 

157,  160,  247. 
"Widow,     marriage     of,     70;     see 

Dower. 
■Will     of    lands,    introduced    by 

clergy,  2  n. 

—  in  Anglo-Saxon  law,  6,-21. 

—  abolished  after  Conquest,  21,  76, 
120,  298. 

—  customary,  39,  197. 

—  of  copyholds,  221. 

—  of  use  of  lands,  249,  254,  259- 
262,  298. 

—  effect    of  Statute    of   Uses   on, 
269,  270,  276,  299. 

—  of  freeholds,  under  Statutes  of 


Hen.    VIII    and    i    Vict.   c.  26, 
298-312. 
"Will,  solemnities,  300,  301. 

—  construction  of,  304,  305. 

—  speaks  from  death,  306. 

—  revocation  of,  307,  312. 

—  of  married  woman,  265,  266,  312. 

—  of  freeholds,    leaseholds,    copy- 
holds, 337. 

"Witenagemot,  4. 

"Witnesses  to  will,   credibility  of, 

300. 
Writs,     forms      of     {see     various 

titles),  59,  60,  83,  141. 

—  new,  provided  by  Council,  1 26. 

—  —  under  Statute  of  West.  II, 
c.  24,  247. 

—  purchase  of,  138. 

Year  Books,  146,  167. 
Year  to   year,  tenant  from,    171, 
333- 


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